Astorga v. County of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 TYLER ASTORGA, an individual, ) Case No.: 3:21-cv-00463-BEN-KSC ) Plaintiff, 12 ) DECISION RESERVING RULING 13 v. ) ON PLAINTIFF’S MOTION FOR ) ATTORNEY FEES AND COSTS, 14 COUNTY OF SAN DIEGO; KEVIN ) ECF NO. 39, AND ORDERING BOEGLER, in his individual 15 capacity; and DOES 1-25, inclusive, ) PLAINTIFF’S COUNSEL TO FILE ) DECLARATION AND BILLING 16 Defendants. ) RECORDS 17 ) 18 I. INTRODUCTION 19 Plaintiff Tyler Astorga brings this action against Defendants the County of San 20 Diego (the “County”) and Kevin Boegler (“Deputy Boegler”).1 Before the Court is 21 Plaintiff’s Motion for Attorney Fees and Costs. ECF No. 39. The Motion was submitted 22 on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) 23 of the Federal Rules of Civil Procedure. See ECF No. 41. After considering the papers 24 submitted, supporting documentation, and applicable law, the Court cannot determine the 25 number hours accrued and therefore, ORDERS Plaintiff’s counsel to file a declaration and 26 billing records as set forth in Part IV.B. [27] 1 Doe Defendants 1 through 25 were dismissed sua sponte in this Court’s prior order [28] 1 II. BACKGROUND 2 This case is one of several cases filed in the Southern District pertaining to the Black 3 Lives Matter events that took place on May 30, 2020, in La Mesa, California. See, e.g., 4 Horton v. County of San Diego et al., Case No. 3:21-cv-00400-H-BGS; Segura v. City of 5 La Mesa et al., Case No. 3:21-cv-00565-JM-MDD; Woolsey v. County of San Diego et al., 6 Case No. 3:21-cv-00877-BEN-AHG. The facts of the instant case are referred to in this 7 Court’s prior Order, see ECF No. 23, and are not necessary to resolve the instant Motion 8 for Attorney Fees and Costs. As such, the Court proceeds to the procedural history. 9 On March 16, 2021, Plaintiff filed his original Complaint pleading the following 10 claims for relief: (1) excessive force against Deputy Boegler and Does 1 through 50 11 pursuant to 42 U.S.C. § 1983 and his Fourth Amendment rights; (2) failure to properly train 12 against the County of San Diego pursuant to 42 U.S.C. § 1983 and Monell v. Department 13 of Social Services of the City of New York, 436 U.S. 658 (1978); (3) battery against Deputy 14 Boegler; (4) intentional infliction of emotional distress against Deputy Boegler; (5) 15 violation of the Ralph Act, Cal. Civ. Code § 51.7 (the “Ralph Act”), against Deputy 16 Boegler, the County of San Diego, and Does 1 through 25; and (6) violation of the Bane 17 Civil Rights Act, Cal. Civ. Code § 52.1 (the “Bane Act”), against Deputy Boegler, the 18 County of San Diego, and Does 1 through 25. See ECF No. 1. 19 On June 26, 2021, Plaintiff filed his First Amended Complaint, which alleges the 20 same causes of action but omits one previously named Defendant. See FAC. On 21 September 9, 2021, the County filed a Motion to Dismiss and Strike portions of the FAC. 22 See ECF No. 9. The Court granted-in-part the Motion to Dismiss, allowing Plaintiff’s 23 claims under the Ralph Act and Bane Act to proceed and dismissing the Monell claim 24 against the County without prejudice. ECF No. 23. 25 On September 1, 2022, Plaintiff filed a Notice of Settlement. ECF No. 36. On 26 December 12, 2022, Plaintiff filed the instant Motion for Attorney Fees and Costs. ECF 27 No. 39 (“Motion”). On December 23, 2022, Defendants filed an Opposition to Plaintiff’s 28 Motion. ECF No. 40 (“Oppo.”). 1 III. LEGAL STANDARD 2 Pursuant to 42 U.S.C. § 1988 , in civil rights cases, a Court has discretion to award 3 “the prevailing party” reasonable attorneys’ fees. Although “[t]he court’s discretion under 4 section 1988 has been interpreted very narrowly,” see Ackerley Commc’ns, Inc. v. City of 5 Salem, Or., 752 F.2d 1394, 1396 (9th Cir. 1985), “fee awards should be the rule rather than 6 the exception.” Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir. 1981); see also 7 V.A. v. San Pasqual Valley Unified Sch. Dist., No. 17-cv-02471-BAS-AGS, 2018 WL 8 3956050, at *1 (S.D. Cal. Aug. 17, 2018) (quoting the same). 9 IV. DISCUSSION 10 Plaintiff seeks attorney fees and costs pursuant to 42 U.S.C. § 1988 , California Civil 11 Code § 52.1(i), and Federal Rule of Civil Procedure 54(d). ECF No. 39 at 1. During 12 September 2022, the parties entered a Settlement Agreement permitting Plaintiff to seek 13 “reasonable costs and attorneys’ fees . . . in an amount to be determined by the Court.” Ex. 14 A to Motion at 1. Plaintiff seeks $57,580.00 in attorneys’ fees and $1,705.38 in costs. 15 Motion at 6. Defendants argue the amount Plaintiff seeks is not reasonable and includes 16 fees outside the confines of the Settlement Agreement. Oppo. at 6. The Court agrees that 17 Plaintiff seeks fees excluded under the parties’ Settlement Agreement and without billing 18 records, the Court cannot accurately determine a reasonable fee amount that falls within 19 the Agreement. Accordingly, the Court reserves ruling on Plaintiff’s Motion for Attorney 20 Fees and Costs pending a review of the declaration and billing records ordered in Part IV.B. 21 of this decision. 22 A. The Settlement Agreement 23 The Supreme Court has held that settlement agreements in civil rights cases may 24 include waivers of § 1988 attorneys’ fees. See Evans v. Jeff D., 475 U.S. 717 , 737–38 25 (1986); see also Willard v. City of Los Angeles, 803 F.2d 526, 527 (9th Cir. 1986) (citing 26 Evans, 475 U.S. at 737–38)); K.M. v. Tehachapi Unified Sch. Dist., No. 1:17-cv-0143127 NON-EJLT, 2021 WL 1291958 , at *4 (E.D. Cal. Apr. 7, 2021) (quoting Muckleshoot Tribe 28 v. Puget Sound Power & Light Co., 875 F.2d 695, 697 (9th Cir. 1989) (“A prevailing civil 1 rights plaintiff may sue for reasonable attorney’s fees ‘unless the defendant shows that the 2 plaintiff clearly waived fees as part of the settlement [agreement].’”)). However, “any 3 waiver or limitation of attorney fees in settlements of § 1983 cases must be clear and 4 unambiguous.” Erdman v. Cochise Cnty., Ariz., 926 F.2d 877, 880 (9th Cir. 1991) (citing 5 Muckleshoot Tribe, 875 F.2d at 698 ). The Court looks to the language of the Settlement 6 Agreement to determine whether Plaintiff clearly and unambiguously waived his right to 7 certain fees. See Muckleshoot Tribe, 875 F.2d at 698 . 8 Plaintiff contends the parties “agreed that Plaintiff is entitled to submit a petition for 9 recovery of reasonable attorneys’ fees and costs accrued from January 5, 2021 through 10 present.” Motion at 1. Defendants respond that the Settlement Agreement explicitly 11 prohibits Plaintiff’s recovery of attorney fees incurred after June 28, 2022. Oppo. at 10. 12 The Court agrees with Defendants. With respect to fees and costs, the Settlement 13 Agreement states: [14] For the sole consideration of FIFTY THOUSAND DOLLARS ($50,000.00) [15] plus reasonable costs and attorneys’ fees accrued by Plaintiff up through June 16 28, 2022, that are otherwise recoverable in this action, in an amount to be determined by the Court, Plaintiff . . . hereby releases and forever discharges [17] [Defendants] . . . from all claims and demands, attorney fees and costs . . . 18 resulting or to result from an occurrence or occurrences in or about May 3031, 2020, as alleged in the complaint filed by Plaintiff in the United States [19] District Court in the Southern District of California . . . . [21] Ex. A to Motion at 4. The text of the Settlement Agreement is clear in that Plaintiff may [22] recover reasonable costs and attorney fees accrued through June 28, 2022, in exchange for [23] the settlement sum of $50,000. Id. The Agreement also makes clear that the fees should [24] be otherwise recoverable and, in an amount, determined by the Court. Id. But nothing in [25] the record supports Plaintiff’s argument that he may recover fees incurred from January 5, [26] 2021 to present. Plaintiff did not rebut Defendants’ argument or challenge the signed [27] Settlement Agreement attached to Defendants’ briefing. Based on the clear text of the [28] 1 Settlement Agreement and no opposing argument to consider, the Court is unpersuaded by 2 Plaintiff’s contention that he is entitled to fees for the time spent litigating the instant 3 Motion, or for any work that occurred after June 28, 2022. See Motion at 5–6. 4 Accordingly, the Court considers an award of reasonable fees for work performed through 5 June 28, 2022. 6 B. Reasonable Fees 7 “The Supreme Court has instructed that ‘[t]he initial estimate of a reasonable 8 attorney’s fee is properly calculated by multiplying the number of hours reasonably 9 expended on the litigation times a reasonable hourly rate,’ an approach commonly known 10 as the ‘lodestar’ method.” Vargas v. Howell, 949 F.3d 1188, 1194 (9th Cir. 2020) (quoting 11 Blum v. Stenson, 465 U.S. 886, 888 (1984)). As such, the Court looks to Plaintiff’s 12 proposed hourly rates and the number of hours accrued. Defendants make various 13 arguments regarding the hourly rates provided by Plaintiff. However, the Court does not 14 reach these arguments, because it cannot accurately determine the number of hours accrued 15 based on the current record. 16 Plaintiff’s Motion states that Mr. Pride spent 50 hours working on the instant case, 17 that Ms. Cole spent 56.1 hours, and that Ms. McMains spent 15 hours. The number of 18 hours accrued by all three attorneys totals 121.1. Plaintiff cites Moreno v. City of 19 Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) to argue that: (1) some degree of 20 duplication is inherently part of the process; and (2) it is atypical for attorney fees to be 21 inflated in civil rights cases, when the attorneys are working based on contingency fees. 22 Motion at 4. Plaintiff further argues that his counsel worked extensively during this case 23 to respond to discovery, engage in meet and confer sessions with opposing counsel, and to 24 successfully oppose all of Defendants’ motions. Id. at 5. 25 Defendants argue that Plaintiff “does not include a single billing record or any 26 indication that the number of hours sought by Plaintiff are reliable or reasonable.” Oppo. 27 at 12. Instead, Defendants argue that Plaintiff “simply lists 121.1 total hours by three 28 different attorney timekeepers, two who do not supply declarations in support of their 1 hours,” and there is no indication of when these hours were spent or on what tasks. Id. at 2 12–13. Specifically, Defendants argue that the following tasks did not occur before June 3 28, 2022: (1) responding to discovery; (2) engaging in meet and confer sessions with 4 defense counsel; (3) successfully opposing all of Defendants’ motions; and (4) the time 5 spent on the instant fees Motion. Id. at 11. 6 Without billing records, the Court cannot determine what hours were spent on what 7 tasks, and importantly, at what point in time. As noted above, based on the Settlement 8 Agreement, the Court will not entertain an award of fees for work performed after June 28, 9 2022. Plaintiff clearly and unambiguously contracted out of his right to obtain those fees. 10 Yet Plaintiff seeks fees for work on the instant Motion, which could not have reasonably 11 occurred before the June 28, 2022 cut-off date. It also appears from the docket that limited 12 discovery (if any) could have occurred before the June 28, 2022. As such, based on the 13 briefing before it, the Court finds that at least some of the 121.1 hours for which Plaintiff 14 seeks fees accrued after June 28, 2022. Without the billing records, the Court cannot 15 determine how these hours should be reduced. 16 Accordingly, Plaintiff’s counsel is ORDERED to file a declaration stating the 17 number of hours worked by each attorney through the June 28, 2022 cut-off date. Attached 18 to the declaration should be counsels’ respective billing records for the hours worked. The 19 Court will likewise disregard any clerical work. Defendants argue that clerical tasks are 20 not recoverable under § 1988 and there are no counterarguments to consider. As such, the 21 declaration and billing records should be limited to work performed through June 28, 2022 22 and should exclude clerical work and costs. Durruthy v. Charter Commc’ns, LLC, No. 23 3:20-cv-01374-W-MSB, 2021 WL 6883423 , at *9 (S.D. Cal. Sept. 30, 2021) (citing 24 Rosemary G. V. v. Saul, 3:19-cv-00715-RBM, 2020 WL 6703123 at *4 (S.D. Cal. Nov. 12, 25 2020) (“Time billed for clerical tasks is not recoverable as the tasks should be absorbed 26 into law firm overhead rather than billed at the rate of paralegals. Tasks such as filing and 27 organization are clerical in nature.”)); G & G Closed Cir. Events, No. 3:20-cv-00801-BEN28 RBB, 2021 WL 164998 , at *7 (S.D. Cal. Jan. 19, 2021) (citing Nadarujah v. Holder, 569 1 || F.3d 906, 921 (9th Cir. 2009) (“Courts have held that attorneys may not seek to recover for 2 ||administrative tasks or time.”)). The Court makes no findings as to the hourly rates or 3 ||number of hours at this time and will consider an appropriate fee award after review of the 4 || declaration and billing records. 5 CONCLUSION 6 The Court rules as follows: 7 1. Plaintiff's counsel must file the declaration and billing records no later than 8 || June 23, 2023. 9 2. If no declaration and/or billing records are submitted by the deadline, the 10 || Court will deny Plaintiff's Motion for Attorney Fees and Costs. 11 3. The Court will not consider arguments raised for the first time in the 12 || declaration. 13 IT IS SO ORDERED. ° 14 || DATED: June 15, 2023 15 ~ ROGER T. BENIT 6 United States District Judge [28] -7-