Cosby v. Autozone, Inc.

RANDY COSBY, Plaintiff, v. AUTOZONE, INC., JAMES KULBACKI, and DOES 1-100, inclusive, Defendants.

No. 2:08-cv-00505-KJM-DAD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 24, 2016

ORDER

I. INTRODUCTION

Plaintiff Randy Cosby brought this action under the California Fair Employment and Housing Act (FEHA). Compl., ECF No. 1. Judgment was entered on February 24, 2010 after a jury trial, and Cosby was awarded $1.5 million in damages. Jury Verdict, ECF No. 88. Thereafter, defendant Autozone filed three appeals, each regarding the issue of Cosby's damages. ECF Nos. 119, 176, 204.

Cosby now seeks attorneys' fees for time expended in preparation for trial, time during trial, as well as time expended in defending against Autozone's appeals, in two separate applications. Appl. #1, ECF No. 107; Appl. #2, ECF No. 222. The matters were submitted without a hearing. ECF No. 229. As explained below, Application #1 is GRANTED IN PART in accordance with the principles established in an order of the previously assigned district judge. See Prior Order, ECF No. 143. Application #2 also is GRANTED IN PART.

II. BACKGROUND & PROCEDURAL HISTORY

Randy Cosby, a former employee of Autozone, Inc., sued his former employers asserting claims for violations of the FEHA. Not. Remov., ECF No. 1. On January 26, 2010, a jury trial commenced to address five claims: (1) disability discrimination; (2) failure to prevent disability discrimination and retaliation; (3) failure to engage in the interactive process; (4) failure to provide reasonable accommodations; and (5) retaliation. Prior Order at 2. On February 12, 2010, the jury reached verdicts on the claims. See Jury Verdicts, ECF Nos. 81-86. The jury found for Cosby with respect to his claims of failure to engage in the interactive process and failure to provide reasonable accommodations. ECF Nos. 82, 83. The jury found for Autozone with respect to the claims of disability discrimination, failure to prevent disability discrimination and retaliation, and retaliation. ECF Nos. 84-86.

On February 24, 2010, the jury awarded Cosby $174,000 in economic losses and $1,326,000 in damages for emotional and mental distress, totaling $1.5 million in compensatory damages. Jury Verdict, ECF No. 88. On March 17, 2010, Autozone moved for a new trial or remittitur, claiming the damages award was excessive. ECF No. 97. On April 19, 2010, the court denied this motion. ECF No. 106. In response, Autozone filed its first of three appeals, challenging the court's entry of judgment on damages. ECF No. 119.

While the first appeal was pending, Cosby filed his first application with this court for attorneys' fees and costs. Appl. #1. This application covered hours incurred from the date he says investigation began on September 25, 2006, well before trial, to April 21, 2010, when the first application was submitted. See id.; see also Bohm Decl., ECF No. 110-1.

On December 16, 2010, while the first appeal was still pending, the court issued an order deciding, inter alia, that Cosby was the prevailing party in the jury trial, and in the court's discretion, he would be awarded attorneys' fees. Prior Order at 6. The court also set billing rates for Joseph Earley, Charles Moore and Lawrence Bohm at $375 an hour. Id. at 6. The court concluded several deductions were warranted, including deductions for hours Earley billed toattend a deposition in Albuquerque, New Mexico, because the court reasoned it was unnecessary for two counsel to attend the deposition. Id. at 7. The court also declined to compensate in full or in part for several time entries. Id. at 8, 12. For example, it reduced the amount billed for travel time by fifty percent and reduced Earley's lodestar to $100 per hour for 16.5 hours spent accompanying a witness to Northern California so he could testify at trial. Id. at 8, 12. In the court's judgment, a paralegal was just as capable of performing this task. Id. at 8.

The court also identified and declined to compensate for several inflated fee requests, including requests connected to "time entries for events at the court where the court knows that plaintiff has over-billed and several entries which appear to the court to be unreasonable." Id. at 9. For the same reason, the court identified and declined to compensate for several "dubious fee requests." Id. As a result of apparent "padding," the court reduced the lodestar for all attorneys by ten percent across the board. Id. at 12. It also declined to apply a multiplier. Id. The court later issued a supplemental decision on February 28, 2011, ordering Autozone to pay for fees associated with expert testimony on economic losses. ECF No. 147 at 5. The court stayed the award of fees based on Application #1 pending resolution of defendant's appeal. Id.

On August 1, 2011, the Ninth Circuit issued a memorandum decision granting Autozone's first appeal, reversing based on the district court's error in allowing an award of both economic and non-economic damages. ECF Nos. 149, 150 at 5-6. The Circuit remanded with an order to remit economic and non-economic damages. ECF No. 149. Accordingly, the district court reduced economic damages from $174,000 to $4,917.60, and non-economic damages from $1,326,000 to $250,000. ECF No. 172 at 3, 7. The court gave Cosby the option of a new trial if he did not accept the damages award as remitted, with a new trial addressing only economic and non-economic damages, as well as punitive damages. Id.

Autozone then filed its second appeal, challenging the district court's decision to allow consideration of punitive damages if Cosby chose a new trial. ECF No. 176 at 1-2. Cosby accepted remittitur, $250,000 in non-economic and $4,917.60 in economic damages were awarded, and Autozone's appeal was mooted. ECF Nos. 199, 200.

Autozone then appealed for a third time, challenging the amount of non-economic damages awarded. ECF No. 204. On March 18, 2015, the Ninth Circuit affirmed the district court's reduced award of non-economic damages. ECF No. 213.

On June 2, 2015, Cosby renewed his first application for attorneys' fees, which was stayed pending appeals. Appl. #2, ECF No. 222. That same day, Cosby also submitted a second application to this court for the balance of his attorneys' fees and costs. Id. Application #2 covers hours incurred from May 10, 2010, shortly after the jury verdict and Cosby's first application for attorneys' fees, through Autozone's three appeals, and to June 2, 2015. Bohm Decl. Exs., ECF No. 222-3. On July 10, 2015, Autozone filed an opposition to Cosby's motion, Defs.' Opp'n, ECF No. 224, to which Cosby has replied, Reply, ECF No. 227.

III. LEGAL STANDARD

Attorney's fees in FEHA actions are governed by statute, which provides that a court, "in its discretion, may award to the prevailing party reasonable attorney's fees and costs." Cal. Gov't Code § 12965(b); Beaty v. BET Holdings, Inc., 222 F.3d 607, 609 (9th Cir. 2000) (interpreting the FEHA). Unless special circumstances would render a fee award unjust, the court should ordinarily award attorneys' fees to a prevailing FEHA plaintiff. Steele v. Jensen Instrument Co., 59 Cal. App. 4th 326, 330 (1997).

After the court decides to award attorneys' fees to the prevailing party, it determines the award amount. See Mangold v. Cal. Pub. Utilities Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995) (interpreting the FEHA). Courts in the Ninth Circuit apply state law in determining the right to fees in addition to the method of calculating fees. Id. In California, the court determines the award amount through the "lodestar adjustment method." Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). The lodestar adjustment method requires the court to determine a "touchstone" figure based on the number of hours reasonably expended, multiplied by the reasonable hourly rate. Id. at 1132.

After determining the lodestar amount, the court can determine whether it will apply a multiplier. A multiplier may be used to adjust the lodestar based on several factors, including "(1) the novelty and difficulty of the questions involved, (2) the skill displayed inpresenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award." Nichols v. City of Taft, 155 Cal. App. 4th 1233, 1240 (2007). The "court is not required to include a fee enhancement to the basic lodestar figure for contingency cases, exceptional skills, or other factors, although it retains discretion to do so in the appropriate case." Id.

IV. DISCUSSION

As noted, Cosby filed two applications for attorneys' fees. Appl. #1, Appl. #2. The first application remains pending as renewed following conclusion of appeal. The court addresses each application in turn.

A. Fee Application #1

Application #1 covers attorney hours billed from September 25, 2006 to April 21, 2010. ECF No. 110.

As noted, the previously-assigned district judge addressed this application for attorneys' fees in two orders. See Prior Order; see also ECF No. 147. In general, "judges who sit [on the same case] should not attempt to overrule the decisions of each other." Castner v. First Nat'l Bank of Anchorage, 278 F.2d 376, 379 (9th Cir. 1960) (citation and quotation marks omitted). "[J]udges must, in light of the overarching 'principles of comity and uniformity,' make every effort 'to preserve the orderly functioning of the judicial process' when reconsidering an order of a prior judge in the same case." Baldwin v. United States, 823 F. Supp. 2d 1087, 1099 (D. N. Mar. 1, 2011) (quoting Castner, 278 F.2d at 379-80). While a second judge has discretion to review the decision of a predecessor in the same case, the law of the case doctrine can limit that discretion. Delta Savings Bank v. United States, 265 F.3d 1017, 1027 (9th Cir. 2001) (quoting Jeffries v. Wood, 114 F.3d at 1484, 1489 (9th Cir. 1997)). Indeed, "the prior decision should be followed unless (1) the decision...