Erhart v. Bofi Holding Inc., No. 3:2015cv02287 - Document 405 (S.D. Cal. 2023)

Court Description: ORDER granting in part and denying in part 384 Plaintiff Charles Matthew Erhart's Motion for Attorneys' Fees. The Clerk of Court shall enter an amended judgment that awards Erhart $2,405,559.20 in attorneys fees. Signed by Judge Cynthia Bashant on 9/28/2023. (BAS)

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Erhart v. Bofi Holding Inc. Doc. 405 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES MATTHEW ERHART, Plaintiff, 12 13 14 15 Case No. 15-cv-02287-BAS-NLS consolidated with 15-cv-02353-BAS-NLS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (ECF No. 384) v. BOFI FEDERAL BANK, Defendant. 16 17 18 And Consolidated Case 19 20 In 2015, Defendant BofI Federal Bank terminated one of its internal bank auditors— 21 Plaintiff Charles Matthew Erhart—after learning he reported information to the 22 Government. Seven years later, after a winding journey, a jury found BofI violated the law 23 and awarded Erhart $1.5 million. 24 Erhart now turns to three statutes to recover $3 million in attorneys’ fees. He asks 25 the Court to enhance the fee award, resulting in a grand total of $7.3 million. BofI responds 26 with a stack of spreadsheets and a long list of arguments. The Bank contends the Court 27 should deny the request or substantially reduce the requested fees. 28 -115cv2287 Dockets.Justia.com 1 The Court agrees Erhart is entitled to recover fees. That said, some of the hours his 2 counsel spent will not be included in the lodestar. And the motion stumbles when it comes 3 to justifying counsel’s hourly rates. Ultimately, the Court awards $2,405,559.20 in 4 attorneys’ fees. BACKGROUND 1 5 6 Erhart worked in BofI’s Internal Audit Department for approximately eighteen 7 months. The narrative Erhart presented throughout this case—and the one that prevailed 8 at trial—is that he was an internal auditor in a turbulent corporate environment. Time and 9 time again, Erhart battled against pressure from senior management as he discovered 10 wrongful conduct. But when Erhart believed the events were hitting a flashpoint, his 11 supervisor abruptly quit. Erhart then informed the Bank’s principal regulator of his 12 findings. 13 incompetent at his job. In the aftermath, BofI terminated and defamed Erhart, claiming he was 14 Erhart later filed this lawsuit for whistleblower retaliation under state and federal 15 law. Erhart’s initial complaint included ten causes of action and described over a dozen 16 instances of believed wrongdoing at the Bank. His counsel also tipped off The New York 17 Times, leading to a morning edition article about the lawsuit. BofI’s stock plummeted 18 thirty percent, and the first of several securities class action lawsuits soon followed. 19 The Bank responded by pulling out all the stops. Instead of waiting to file a 20 counterclaim, the Bank brought another suit with eight claims under state and federal law. 21 The Bank’s counternarrative claimed Erhart not only lacked a reasonable belief that BofI 22 violated the law, but also wanted to “bring down the bank” and abandoned his job. The 23 Bank quickly papered Erhart with a barrage of motions: a motion to dismiss and strike his 24 complaint, a motion for a preliminary injunction, a motion for a determination that Erhart 25 waived attorney-client privilege over certain documents, a motion for summary 26 27 1 28 The Court has summarized this dispute in a variety of orders. Except where noted otherwise, the Court draws these facts from the evidence presented at trial. -215cv2287 1 adjudication of Erhart’s affirmative defenses to BofI’s claims, and a motion for spoliation 2 sanctions. 3 After denying BofI’s request for extraordinary relief, the Court consolidated the 4 parties’ dispute while ruling on the first of several challenges to the pleadings. Over the 5 next several years, the parties whittled the case down before trial. The Court dismissed 6 Erhart’s California causes of action for violation of the Confidentiality of Medical 7 Information Act, breach of the implied covenant of good faith and fair dealing, and 8 intentional infliction of emotional distress. Then, at the summary judgment phase, the 9 Court grappled with the core of Erhart’s lawsuit: his four whistleblower retaliation and 10 wrongful termination claims. The Court held some of the wide-ranging factual predicates 11 for these claims could not support liability as a matter of law, but most survived scrutiny. 12 Then, in the run-up to trial, BofI abandoned one of its state law claims, and the Court 13 eliminated another. Finally, during trial, the Court summarily resolved one of Erhart’s 14 federal whistleblower retaliation causes of action. 15 Although most of Erhart’s case reached the jury, one of the Court’s rulings limited 16 his recoverable damages. The Court found Erhart’s counsel disregarded Federal Rule of 17 Civil Procedure 26 by failing to provide any estimate of Erhart’s calculable damages 18 throughout discovery. This ruling meant he could seek only emotional distress damages, 19 reputational damages, and punitive damages at trial. 20 Over the course of a three-week jury trial in spring 2022, the parties presented their 21 competing narratives and intersecting claims. Erhart prevailed. The jury found BofI 22 violated the Sarbanes-Oxley Act, California Labor Code section 1102.5, and California 23 public policy when the Bank terminated him. (Jury Verdict 2–3, ECF No. 314.) In line 24 with the Court’s damages ruling, the jury assessed Erhart’s “emotional distress or harm to 25 his reputation” for these claims. (Id. 4.) The jury awarded him $1 million. (Id.) Erhart 26 also prevailed on his California state law defamation claim, and the jury awarded him 27 $500,000. (Jury Verdict 5–6.) The jury found BofI’s conduct warranted punitive damages 28 under state law but deadlocked on the amount to award. (ECF No. 359.) The Court held -315cv2287 1 a limited retrial on the punitive damages issue, and a second jury found punitive damages 2 were not appropriate. (ECF No. 370.) 3 Erhart now moves for $7.3 million in attorneys’ fees and $1.19 million prejudgment 4 interest. (Mot., ECF No. 384-1.) The Court addresses the fee request here. The motion is 5 fully briefed, including a sur-reply. (ECF Nos. 390, 394, 402.) Altogether, the parties’ 6 filings eclipse 1,000 pages, and the Court finds the motion suitable for determination on 7 the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 8 7.1(d)(1). 9 10 ANALYSIS I. Entitlement to Fees 11 The starting point is whether Erhart is entitled to recover his attorneys’ fees. He 12 prevailed on federal and state law claims. “In a pure federal question case brought in 13 federal court, federal law governs attorney fees.” Disability L. Ctr. of Alaska, Inc. v. 14 Anchorage Sch. Dist., 581 F.3d 936, 940 (9th Cir. 2009). “State law governing attorneys’ 15 fees can also apply to state law claims over which federal courts exercise supplemental 16 jurisdiction.” Chicken Ranch Rancheria of Me-Wuk Indians v. California, 65 F.4th 1145, 17 1148 (9th Cir. 2023). State law applies if it is substantive under the Erie doctrine and “the 18 fee award is ‘connected to the substance of the case.’” Northon v. Rule, 637 F.3d 937, 938 19 (9th Cir. 2011) (quoting Price v. Seydel, 961 F.2d 1470, 1475 (9th Cir. 1992)). Stated 20 differently, “so long as ‘state law does not run counter to a valid federal statute or rule of 21 court . . . state law denying the right to attorney’s fees or giving a right thereto, which 22 reflects a substantial policy of the state, should be followed.’” Indep. Living Ctr. of S. 23 California, Inc. v. Kent, 909 F.3d 272, 281–82 (9th Cir. 2018) (alteration in original) 24 (quoting MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 1999)). 25 Erhart contends three laws entitle him to recover attorneys’ fees: Sarbanes–Oxley, 26 California Labor Code section 1102.5(j), and California Code of Civil Procedure section 27 1021.5. (Mot. 1:22–24.) Federal law, of course, controls whether Erhart can recover fees 28 under Sarbanes–Oxley. See Chicken Ranch, 65 F.4th at 1148. As for the two California -415cv2287 1 statutes, these are substantive laws under Erie. They reflect substantial policies of the State 2 and apply to Erhart’s successful state law claims brought under the supplemental 3 jurisdiction statute. Cf. Indep. Living Ctr. of S. Cal., 909 F.3d at 282 (applying section 4 1021.5 to state law cause of action removed under federal question statute after considering 5 Erie principles). Hence, the Court will consider whether these state laws also entitle Erhart 6 to fees. See Klein v. City of Laguna Beach, 810 F.3d 693, 701–02 (9th Cir. 2016); see also 7 Chicken Ranch, 65 F.4th at 1151 (explaining “it is the nature of the claim on which a party 8 prevailed (federal or state) that determines the law that applies (federal or state) to any 9 request for attorneys’ fees”). 10 A. 11 Erhart’s clearest path to recovering attorneys’ fees is under Sarbanes–Oxley’s anti- 12 retaliation provision. Under federal law, litigants pay their own attorneys’ fees unless a 13 statute or contract provides otherwise. Chicken Ranch, 65 F.4th at 1148. Sarbanes–Oxley 14 contains such an exception. An employee who prevails under its anti-retaliation provision 15 is entitled to recover “compensation for any special damages sustained as a result of the 16 discrimination, including litigation costs, expert witness fees, and reasonable attorney 17 fees.” 18 U.S.C. § 1514A(c)(2)(C). This language echoes other federal statutes that 18 authorize reasonable attorneys’ fees for the prevailing plaintiff. See, e.g., 49 U.S.C. § 19 20109(e)(2)(C); 31 U.S.C. § 3730(h)(2); 29 U.S.C. § 216(b). 20 21 Sarbanes–Oxley Erhart prevailed on his Sarbanes–Oxley anti-retaliation claim at trial. He is therefore entitled to recover reasonable attorneys’ fees under 18 U.S.C. § 1514A(c)(2)(C). 22 B. 23 Erhart also seeks fees under California Labor Code section 1102.5. California has 24 the same default rule: litigants pay their own attorneys’ fees with a panoply of statutory 25 and equitable exceptions. Trope v. Katz, 11 Cal. 4th 274, 278 (1995). The law invoked 26 here, Labor Code section 1102.5, is “California’s general whistleblower statute.” McVeigh 27 v. Recology San Francisco, 213 Cal. App. 4th 443, 468 (2013). California Labor Code Section 1102.5 28 -515cv2287 1 When Erhart filed this case, Labor Code section 1102.5 did not include fee-shifting. 2 The California Legislature amended the law as of January 1, 2021. A.B. 1947, 2019 Leg. 3 (Cal. 2020). The statute now includes subsection (j), which provides: “The court is 4 authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action 5 for a violation of these provisions.” Cal. Lab. Code § 1102.5(j). 6 Erhart prevailed at trial in 2022. He argues section 1102.5(j) applies because this 7 case was not final when the legislature’s amendment became effective in 2021. (Mot. 8 8:15–9:21.) BofI counters that section 1102.5(j) is inapplicable because statutes ordinarily 9 apply prospectively. (Opp’n 21:14–22:9.) 10 Neither party points to a California decision determining whether Labor Code 11 section 1102.5(j)’s applies to cases pending at the time of amendment. BofI cites to a 12 district court that concluded “no authority supports the provision’s retrospective 13 application.” (Opp’n 21:14–22:9 (quoting Nikmanesh v. Wal-Mart Stores, Inc., No. SACV 14 15-202 JGB (JCGx), 2022 WL 1837515, at *15 (C.D. Cal. Feb. 25, 2022)).) See also 15 Bahra v. Cnty. of San Bernardino, No. EDCV 16-1756 JGB SPx, 2022 WL 6653533, at *5 16 (C.D. Cal. Sept. 7, 2022). The district court reached that conclusion, however, after the 17 plaintiff cited to “a hodgepodge of authority,” without any explanation, to suggest 18 otherwise. Nikmanesh, 2022 WL 1837515, at *15 n.5. In contrast, Erhart identifies ample 19 support in California law for his position that section 1102.5(j) applies here. (Mot. 8:15– 20 9:21.) 21 Erhart’s showing is persuasive. No doubt, under California law, the “general rule is 22 that absent a clear, contrary indication of legislative intent,” courts “interpret statutes to 23 apply prospectively.” USS-Posco Indus. v. Case, 244 Cal. App. 4th 197, 217–18 (2016). 24 But this rule is a general one for good reason. “Fee and cost eligibility statutes” under 25 California law “are a ‘special category within the general topic of the prospective or 26 retroactive application of statutes’ subject to an ‘extensive line of authority.’” Id. (quoting 27 Quarry v. Doe I, 53 Cal. 4th 945, 956 (2012)). Indeed, “the California Supreme Court and 28 many, many Courts of Appeal have treated legislation affecting the recovery of costs, -615cv2287 1 including attorney fees, as addressing a ‘procedural’ matter that is ‘prospective’ in 2 character and thus not at odds with” this presumption. Id. at 221. 3 Two California Supreme Court cases—Stockton Theatres, Inc. v. Palermo, 47 Cal. 4 2d 469 (1956), and Woodland Hills Residents Ass’n, Inc. v. City Council, 23 Cal. 3d 917 5 (1979)—stand for the proposition “that in the absence of express legislative intent to the 6 contrary, ‘a new statute authorizing an award of attorney fees’ or a statute ‘increasing or 7 decreasing litigation costs, including attorneys’ fees’ applies to actions pending at the time 8 of enactment.” USS-Posco Indus., 244 Cal. App. 4th at 220; see also K.M. v. Grossmont 9 Union High Sch. Dist., 84 Cal. App. 5th 717, 739 (2022) (reasoning cases analyzing the 10 retroactivity of attorneys’ fees statutes “remain distinct” from the caselaw assessing 11 damages). “This is true even though the costs or fees at issue were incurred prior to the 12 effective date of the new statute.” Reyes v. Beneficial State Bank, 76 Cal. App. 5th 596, 13 616 (2022). 14 BofI does not discuss this California authority. (Opp’n 20:14–22:9.) The Bank does, 15 however, highlight a California Senate Judiciary Committee analysis of the bill amending 16 section 1102.5. (ECF No. 390-26.) 2 That bill both added fee shifting and adjusted the 17 statute of limitations for whistleblower retaliation claims. The legislative history notes the 18 bill “is silent about its effect on pre-existing claims.” (ECF No. 390-26.) That said, when 19 one reads on, it is clear that this analysis is addressing the change to the statute of 20 limitations, not the addition of fee-shifting under subsection (j). The committee’s analysis 21 concludes the bill would not revive “claims based on incidents for which the existing period 22 has expired, or will expire prior to enactment of this bill.” (Id.) Simply put, this legislative 23 history lends little support to BofI’s position. 24 25 26 27 28 2 The Bank’s request for judicial notice of this report is granted. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (“Legislative history is properly a subject of judicial notice.”); see also Anders v. Superior Ct., 192 Cal. App. 4th 579, 590 (2011) (considering similar report when analyzing legislative history of statute). -715cv2287 1 Given the California caselaw addressing similar fee statutes, and the lack of a 2 response from BofI addressing this authority, the Court finds section 1102.5(j) applies. 3 And although the conclusion may be different under federal law, section 1102.5 is a state 4 statute, and state law controls its application here. See Northon, 637 F.3d at 938. The 5 statute authorizes an award of attorneys’ fees to Erhart because this action was pending 6 when section 1102.5(j) became effective. See, e.g., Woodland Hills, 23 Cal. 3d at 925; 7 USS-Posco Indus., 244 Cal. App. 4th at 220; Reyes, 76 Cal. App. 5th at 616. 8 C. 9 Third, Erhart seeks fees under California’s Private Attorney General Statute, Cal. 10 Civ. Proc. Code § 1021.5. Under this provision, “a court may award attorneys’ fees to a 11 successful party against one or more opposing parties” if the action “has resulted in the 12 enforcement of an important right affecting the public interest” and several additional 13 requirements are satisfied. Id. California Code of Civil Procedure Section 1021.5 14 Section 1021.5 is “[a]n important exception” in California “to the American rule that 15 litigants are to bear their own attorney fees.” Graham v. DaimlerChrysler Corp., 34 Cal. 16 4th 553, 565 (2004). California enacted the provision “as a codification of the private 17 attorney general doctrine of attorney fees developed in prior judicial decisions.” Maria P. 18 v. Riles, 43 Cal. 3d 1281, 1288 (1987). This doctrine “rests upon the recognition that 19 privately initiated lawsuits are often essential to the effectuation of the fundamental public 20 policies embodied in constitutional or statutory provisions, and that, without some 21 mechanism authorizing the award of attorney fees, private actions to enforce such 22 important public policies will as a practical matter frequently be infeasible.” Woodland 23 Hills, 23 Cal. 3d at 933. “Thus, the fundamental objective of the doctrine is to encourage 24 suits enforcing important public policies by providing substantial attorney fees to 25 successful litigants in such cases.” Riles, 43 Cal. 3d at 1289. 26 Erhart is a successful party under the Private Attorney General Statute. He prevailed 27 on his California claims for wrongful discharge in violation of public policy, violation of 28 Labor Code section 1102.5, and defamation. -815cv2287 1 He must still satisfy section 1021.5’s remaining requirements to obtain a fee award. 2 Cal. Civ. Proc. Code § 1021.5. These requirements are “established when (1) plaintiffs’ 3 action has resulted in the enforcement of an important right affecting the public interest, 4 (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the 5 general public or a large class of persons, and (3) the necessity and financial burden of 6 private enforcement are such as to make the award appropriate.” Millview Cty. Water Dist. 7 v. State Water Res. Control Bd., 4 Cal. App. 5th 759, 768 (2016) (internal quotation marks 8 omitted) (quoting Summit Media LLC v. City of Los Angeles, 240 Cal. App. 4th 171, 187 9 (2015)). The party seeking fees under section 1021.5 has the burden “to demonstrate all 10 elements of the statute.” Id. (citing Norberg v. Cal. Coastal Comm’n, 221 Cal. App. 4th 11 535, 545–546 (2013)). 12 Fees under Code of Civil Procedure section 1021.5 are not warranted here. First, as 13 discussed above, Erhart is already entitled to seek fees under Labor Code section 1102.5. 14 He succeeded on two other state law claims—wrongful termination in violation of public 15 policy and defamation. Erhart’s wrongful termination claim could serve as a basis for an 16 award of fees under the Private Attorney General Statute, but this claim was 17 undistinguishable from his Labor Code section 1102.5 claim. Meaning, Erhart can already 18 recover for the work done on these twin claims. 19 Erhart’s remaining successful claim, defamation, does not plainly implicate section 20 1102.5, and Erhart does not mention this claim in his moving papers. (See Mot. 6:14–7:5.) 21 See Albin v. Trustmark Ins. Co., No. CV 13-5788 PSG (AGR), 2013 WL 12191722, at *14 22 (C.D. Cal. Nov. 25, 2013) (reasoning a claim for attorneys’ fees under section 1021.5 for 23 defamation fails as a matter of law). 24 But even if there is some benefit to Erhart also being entitled to fees on this ground, 25 the Court finds he does not carry his burden to show the requirements of section 1102.5 26 are met. One missing requirement is that “the necessity and financial burden of private 27 enforcement” must be “such as to make the award appropriate.” Cal. Civ. Proc. Code § 28 1021.5. -915cv2287 1 This requirement examines whether there were “insufficient financial incentives to 2 justify the litigation in economic terms.” Millview, 4 Cal. App. 5th at 768. An award under 3 section 1102.5 is not warranted where “the plaintiff had a ‘personal financial stake’ in the 4 litigation ‘sufficient to warrant [the] decision to incur significant attorney fees and costs in 5 the vigorous prosecution’ of the lawsuit.” Id. at 768–69 (alteration in original) (quoting 6 Summit Media, 240 Cal. App. 4th at 193–94). To illustrate, in Davis v. Farmers Insurance 7 Exchange, 245 Cal. App. 4th 1302, 1310 (2016), the trial court rejected the plaintiff’s 8 request for fees under section 1021.5, and the Court of Appeal affirmed on this issue. Id. 9 at 1338. In discussing the financial burden inquiry, the court determined the plaintiff’s 10 “reasonable expectation of financial benefits from the litigation was sufficient to motivate 11 him to pursue the litigation.” Id. at 1329. It noted the plaintiff “sought over ten million 12 dollars in damages for his allegedly wrongful discharge,” and “he expected to recover 13 hundreds of thousands of dollars for improper wage deductions.” Id. at 1330. Thus, the 14 court concluded “it was reasonable for the [trial] court to find that at every critical juncture 15 [the plaintiff] expected a substantial financial recovery, and that this was sufficient 16 motivation to pursue the case”—making a fee award under section 1021.5 inappropriate. 17 Id. 18 Here, Erhart’s Motion does not brief the financial burden element, which dooms his 19 request under section 1021.5. See Millview, 4 Cal. App. 5th at 773. Regardless, the Court 20 notes there were adequate financial incentives here. Erhart sought millions of dollars in 21 compensatory damages and millions more in punitive damages. 22 recovering $1 million for his whistleblower retaliation claims, and he came within a hair’s 23 breadth of a seven-to-eight figure punitive damages award. The Court is persuaded that at 24 the critical junctures in this action, Erhart “expected a substantial financial recovery, and 25 that this was sufficient motivation to pursue the case.” See Davis, 245 Cal. App. 4th 1302, 26 1310. Consequently, Erhart is not entitled to recover fees under California’s Private 27 Attorney General Statute. He succeeded at 28 - 10 15cv2287 1 II. Lodestar Calculation 2 Erhart is entitled to recover fees under both federal and state law. When it comes to 3 calculating his fee award, these laws are largely coextensive. California law permits the 4 trial court to use the lodestar method to calculate a reasonable fee. E.g., PLCM Grp. v. 5 Drexler, 22 Cal. 4th 1084, 1095 (2000). 6 determined under the lodestar method. See Roberts v. City of Honolulu, 938 F.3d 1020, 7 1023 (9th Cir. 2019); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (“The 8 standards set forth in this opinion are generally applicable in all cases in which Congress 9 has authorized an award of fees to a ‘prevailing party.’”). 3 Fees under Sarbanes–Oxley are likewise 10 It is no surprise, then, that Erhart almost exclusively relies on federal decisions when 11 proposing his lodestar. (Mot. 2:2–6:12; 9:23–15:2.) He has the burden on the fee motion. 12 The Court thus takes the same approach and considers nuances of California law only 13 where the parties’ arguments call for it. See Chaudhry v. City of Los Angeles, 751 F.3d 14 1096, 1106 (9th Cir. 2014); see also Hiken v. Dep’t of Def., 836 F.3d 1037, 1046 (9th Cir. 15 2016) (“[A] court is not required to ‘manufacture arguments’ on behalf of litigants.”). 16 Determining the lodestar amount is a “two-step process.” Roberts, 938 F.3d at 1023 17 (quoting Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016)). “First, a court multiplies 18 the number of hours ‘reasonably expended on a case by a reasonable hourly rate.’” Id. 19 (quoting Kelly, 822 F.3d at 1099). Then, the “court retains discretion to adjust the lodestar 20 figure upward or downward based on a variety of factors ‘not subsumed in the lodestar 21 figure.’” Id. (quoting Kelly, 822 F.3d at 1099). 22 23 24 25 26 27 28 3 Aside from Erhart arguing fees under Sarbanes–Oxley are mandatory (Mot. 4:3–5), neither party suggests the standards used in decisions applying other federal fee-shifting statutes do not apply with equal force to this context. See Van Asdale v. Int’l Game, Tech., No. 3:04-CV-00703-RAM, 2011 WL 2118637, at *6 (D. Nev. May 24, 2011) (rejecting the argument that the Supreme Court’s decision in Hensley and its progeny do not apply to Sarbanes–Oxley’s fee provision); Wooten v. BNSF Ry. Co., 387 F. Supp. 3d 1078, 1107 (D. Mont. 2019) (importing the same standards when applying antiretaliation provision with identical language under the Federal Railroad Safety Act). - 11 15cv2287 1 Litigants seeking fees have the “initial burden of production,” under which they 2 “must ‘produce satisfactory evidence’ establishing the reasonableness of the requested 3 fee.’” United States v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015) 4 (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). If this burden is met, “the court 5 then proceeds to a factual determination as to whether the requested fee is reasonable.” Id. 6 A. 7 The lodestar calculation begins with assessing “how many hours were reasonably 8 expended on the litigation.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 9 2008). “Determining the number of hours reasonably expended requires ‘considering 10 whether, in light of the circumstances, the time could reasonably have been billed to a 11 private client.’” Vargas v. Howell, 949 F.3d 1188, 1194 (9th Cir. 2020) (quoting Moreno, 12 534 F.3d at 1111); see also $28,000.00 in U.S. Currency, 802 F.3d at 1107–08 (“Hours not 13 reasonably expended are those that are ‘excessive, redundant, or otherwise unnecessary.’” 14 (quoting Hensley, 461 U.S. at 434)). Reasonable Hours 15 Erhart claims 4,470 hours were reasonably incurred on this case. (Mot. 10:8–13; 16 Gillam Decl. ¶ 37, ECF No. 384-2.) This total breaks down as follows: Erhart’s lead 17 counsel expended approximately 1,581 hours, her associate spent 2,069 hours, their 18 paralegals labored for 780 hours, and one additional attorney worked 40 hours. (Gillam 19 Decl. ¶ 37.) 20 BofI argues these hours are unreasonable and asks the Court to exclude 1,265 hours 21 on five grounds. (Opp’n 7:23–14:19.) First, Erhart wrongly includes hours for work 22 performed in other litigation. (Id. 8:6–2:9.) Second, there are numerous entries “for work 23 that did not occur or did not occur on the dates claimed.” (Id. 9:3–10:7.) Third, Erhart 24 cannot recover fees related to BofI’s claims. (Id. 10:21–12:7.) Fourth, fees are not 25 recoverable for tasks related to Erhart’s defamation claim. (Id. 12:8–13:6.) And finally, 26 there are various “other issues relating to the people who were doing the work, work done 27 prior to the filing of the lawsuit, the narratives provided, and block billing.” (Id. 13:7– 28 14:19.) - 12 15cv2287 1 Although the Court will address BofI’s arguments, the Court is mindful “that the 2 determination of fees ‘should not result in a second major litigation.’” Fox v. Vice, 563 3 U.S. 826, 838 (2011) (quoting Hensley, 461 U.S. at 437). District “courts need not, and 4 indeed should not, become green-eyeshade accountants.” Id. “The essential goal in 5 shifting fees” to BofI “is to do rough justice, not to achieve auditing perfection.” See id. 6 1. Related Claims 7 Three of BofI’s five arguments strike at the same issue: whether Erhart can recover 8 attorneys’ fees for work performed beyond his fee-shifting whistleblower retaliation 9 claims. The parties clash over a state law doctrine on interrelated claims but do not discuss 10 any federal caselaw. (Opp’n 10:8–21; Reply 4:26–5:6.) 11 The bedrock case touching upon these issues is Hensley v. Eckerhart, 461 U.S. 424 12 (1983). There, the Supreme Court analyzed 42 U.S.C. § 1988, which—like Sarbanes– 13 Oxley—authorizes “a reasonable attorney’s fee.” 42 U.S.C. § 1988(b). And the issue was 14 “whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on 15 unsuccessful claims.” Hensley, 461 U.S. at 426. 16 The Supreme Court observed that in some cases, plaintiffs bring “distinctly different 17 claims for relief that are based on different facts and legal theories.” Hensley, 461 U.S. at 18 434. In that circumstance, the time spent on a claim that is unsuccessful and unrelated to 19 the fee-shifting claim should be excluded. Id. at 434–35. Congress’s “intent to limit 20 awards to prevailing parties requires” that such a claim be treated as if it had been raised 21 in a separate lawsuit, and “therefore no fee may be awarded for services on the unsuccessful 22 claim.” Id. at 435. 23 By comparison, “[i]n other cases the plaintiff’s claims for relief will involve a 24 common core of facts or will be based on related legal theories.” Hensley, 461 U.S. at 435. 25 “Much of counsel’s time will be devoted generally to the litigation as a whole, making it 26 difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be 27 viewed as a series of discrete claims.” Id. Further, where plaintiffs obtain “excellent 28 results,” their counsel “should recover a fully compensatory fee.” Id. - 13 15cv2287 1 The Ninth Circuit distills Hensley’s guidance into two prongs. First, “did the 2 plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?” 3 Ibrahim v. U.S. Department of Homeland Security, 912 F.3d 1147, 1172 (9th Cir. 2019) 4 (en banc) (quoting Hensley, 461 U.S. at 434). This question “rests on whether the related 5 claims involve a common core of facts or are based on related legal theories, with the focus 6 on whether the claims arose out of a common course of conduct.” Id. (cleaned up) (citing 7 Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003); Schwarz v. Sec’y of Health & Hum. 8 Servs., 73 F.3d 895, 903 (9th Cir. 1995)). Second, did “the plaintiff achieve a level of 9 success that makes the hours reasonably expended a satisfactory basis for making a fee 10 award?” Id. (alteration omitted) (quoting Hensley, 461 U.S. at 434). If “the prevailing 11 party achieved ‘excellent results,’” the court “may permit a full fee award—that is, the 12 entirety of those hours reasonably expended on both the prevailing and unsuccessful but 13 related claims.” Id. (citing Hensley, 461 U.S. at 435; Schwarz, 73 F.3d at 905–06). 14 i. Defamation Claim 15 The Court first considers BofI’s argument that Erhart “cannot recover an award for 16 fees incurred in connection with his defamation claim” and those tasks related to BofI’s 17 “defense to Erhart’s defamation claim.” (Opp’n 12:8–13:6.) This point is unconvincing. 18 Erhart succeeded on his defamation claim at trial. So, the Court does not reach the first 19 step of the inquiry under Hensley, which concerns deducting hours for unsuccessful claims. 20 See Ibrahim, 912 F.3d at 1172 (explaining the first question is whether the plaintiff “fail[s] 21 to prevail” on unrelated claims); see also Hensley, 461 U.S. at 439 (directing that the court 22 should exclude “hours spent on [an] unsuccessful claim” if “the plaintiff has failed to 23 prevail on a claim that is distinct in all respects from his successful claims”); Muniz v. 24 United Parcel Serv., Inc., 738 F.3d 214, 224 (9th Cir. 2013) (noting hours can be “deducted 25 specifically for unsuccessful claims” that are “distinct in both fact and law”). 26 Moreover, to leave no doubt, all Erhart’s claims, including the defamation cause of 27 action, are related to his successful, fee-shifting Sarbanes–Oxley claim. The Ninth Circuit 28 does “not require commonality of both facts and law to conclude that claims are related.” - 14 15cv2287 1 Ibrahim, 912 F.3d at 1174. All Erhart’s claims stemmed from his employment relationship 2 with BofI, his reporting of believed wrongdoing to the government, and BofI’s response to 3 his conduct. 4 reasonableness of the fee award below, but it is not appropriate to exclude any hours spent 5 on Erhart’s defamation claim from the lodestar calculation. 4 6 The Court thus considers Erhart’s success in assessing the overall ii. BofI’s Claims 7 The Bank argues “Erhart’s defense against BofI’s cross-complaint is not subject to 8 an award of attorneys’ fees,” and therefore hours incurred to defend BofI’s claims should 9 be excluded from the lodestar calculation. (Opp’n 10:21–12:7.) Having followed this 10 thread to the end, the Court is again unpersuaded. 11 To recap, six days after Erhart sued BofI, the Bank filed a countersuit raising state 12 and federal claims against Erhart. This countersuit tried to plead around Erhart’s federal 13 and state retaliation claims and hold him responsible for allegedly lying to other employees, 14 accessing information without permission, and publishing BofI’s confidential information. 15 For example, in bringing a state law negligence claim against Erhart, BofI alleged he 16 “failed to act reasonably and to exercise due care in the performance of his job duties when 17 he conducted rogue investigations and when he misappropriated” BofI’s confidential 18 information. (BofI’s Compl. ¶ 70.) There are some procedural wrinkles, but these counts 19 were counterclaims in all but name. See Fed. R. Civ. P. 13.5 BofI used these claims to 20 21 22 23 24 25 26 27 28 4 The Court similarly rejects BofI’s footnote argument that the hours spent on the punitive damages retrial should be excluded from the lodestar. (Opp’n 14 n.9.) Erhart’s request for punitive damages was predicated on his successful state law claims, which as mentioned, were also related to his successful federal claim. Cf. Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1177 (10th Cir. 2010) (reasoning where plaintiff prevailed at first trial on fee-shifting retaliation claim, district court did not abuse its discretion “by refusing to exclude the fees accrued during the second jury trial” on unsuccessful, related claims for punitive damages and discrimination); see also Vines v. O’Reilly Auto Enters., LLC, 74 Cal. App. 5th 174, 183 (2022) (“‘California law is consistent with federal law’ that, ‘[i]f a plaintiff has prevailed on some claims but not others, fees are not awarded for time spent litigating claims unrelated to the successful claims’” (emphasis added) (quoting Chavez v. City of Los Angeles, 47 Cal. 4th 970, 989 (2010))). 5 Erhart worked for BofI Federal Bank. He initially brought his claims against BofI Holding, Inc., the publicly-traded holding company for BofI Federal Bank. When BofI filed its countersuit, it brought - 15 15cv2287 1 harry Erhart throughout the litigation, which drove up the cost of litigation, increased the 2 effort required to prepare for trial, and sidetracked Erhart’s counsel repeatedly. 3 Given the close overlap between the parties’ claims, the Court sua sponte ordered 4 consolidation of the countersuit because of the “numerous common questions of law or 5 fact that are related to Erhart’s alleged whistleblowing and his tenure at BofI.” (ECF No. 6 22 at 31:13–32:7.) 6 From there on out, all filings were in Erhart’s whistleblower retaliation 7 action, and the parties’ competing claims were tried together. As the evidence at trial 8 showed, one area where these claims particularly overlapped was the parties’ defenses. 9 Erhart claimed any breach of BofI’s confidentiality agreement or his other duties to BofI 10 was lawful because he engaged in protected activity under Sarbanes–Oxley and California 11 state law. Conversely, the Bank claimed it would have terminated Erhart anyways because 12 of his wrongful conduct. BofI similarly argued that it discovered evidence of Erhart’s 13 purported wrongdoing after termination that should limit Erhart’s damages. 14 It is understandable, then, that the great majority of Erhart’s counsel’s time was 15 “devoted generally to the litigation as a whole.” See Hensley, 461 U.S. at 435. Although 16 BofI identifies some time entries that concern only the Bank’s claims, these hours are but 17 a small fraction of the time Erhart seeks to recover. 18 Moreover, if the Court funnels BofI’s claims through the Hensley analysis, they meet 19 the same fate as the defamation claim. Erhart successfully defeated all BofI’s claims; the 20 jury awarded the Bank nothing. If the law instructs the Court to only exclude time spent 21 on unsuccessful, unrelated claims, then why should the Court exclude counsel’s time spent 22 on the successful defense of closely related claims? See Ibrahim, 912 F.3d at 1172. These 23 hours “contribute[d] to the ultimate victory in the lawsuit.” See Cabrales v. Cnty. of Los 24 25 26 27 28 the claims in the name of BofI Federal Bank, not the holding company. Erhart later amended his complaint to pursue claims against BofI Federal Bank. (Second Am. Compl. ¶ 4.) 6 Although the Court ordered consolidation early on in these proceedings, it notes the only reason it did not happen even sooner is because the Court first devoted its resources to resolving BofI’s request for extraordinary relief. Once the Court denied BofI’s request for a preliminary injunction, the Court resolved the first motion to dismiss, resulting in the sua sponte consolidation of the parties’ claims. - 16 15cv2287 1 Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991). And given the overlap in factual issues, the 2 Court cannot say this time “did not aid in proving” Erhart’s “successful claims.” See 3 Muniz, 738 F.3d at 224. Having adjudicated the parties’ dispute from start to finish, it 4 makes no sense to slice-and-dice counsel’s time “on a claim-by-claim basis” and treat this 5 dispute “as a series of discrete claims.” See Hensley, 461 U.S. at 435. The Court thus will 6 not exclude time from the lodestar that was spent on BofI’s claims. 7 In addition, even though the Court has focused on federal law up to this point, 8 California’s doctrine on intertwined claims likewise provides a path for Erhart to recover 9 these hours. Erhart succeeded on his California Labor Code section 1102.5 claim, which 10 includes fee-shifting, whereas BofI’s competing claims do not. Under California law: 11 “Attorney’s fees need not be apportioned when incurred for representation on an issue 12 common to both a cause of action in which fees are proper and one in which they are not 13 allowed.” Reynolds Metals Co. v. Alperson, 25 Cal. 3d 124, 129–30 (1979); accord 14 Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 159–60 (2006). “Further, 15 ‘[a]pportionment is not required when the claims for relief are so intertwined that it would 16 be impracticable, if not impossible, to separate the attorney’s time into compensable and 17 noncompensable units.’” Maxim Crane Works, L.P. v. Tilbury Constructors, 208 Cal. App. 18 4th 286, 298 (2012) (quoting Bell v. Vista Unified Sch. Dist., 82 Cal. App. 4th 672, 687 19 (2000)). In addition, “as the one who has ‘heard the entire case,’ it is the trial court who is 20 ‘in the best position to determine whether any further allocation of attorney fees [i]s 21 required or whether the issues were so intertwined that allocation would be impossible.’” 22 Cruz v. Fusion Buffet, Inc, 57 Cal. App. 5th 221, 235 (2020) (quoting Thompson Pac. 23 Constr., Inc. v. City of Sunnyvale, 155 Cal. App. 4th 525, 556 (2007)). 24 This rule is well-established when applied to a plaintiff’s claims. E.g., Cruz v. 25 Fusion Buffet, Inc, 57 Cal. App. 5th 221, 230 (2020) (determining court did not abuse its 26 discretion in refusing to apportion fees where the plaintiff’s “meal and rest break claims 27 [for which fees would not be recoverable] are inextricably intertwined with her other wage 28 and hour claims for which fees are recoverable” (alteration in original)); Taylor v. Nabors - 17 15cv2287 1 Drilling USA, LP, 222 Cal. App. 4th 1228, 1251 (2014) (affirming trial court’s refusal to 2 apportion fees between successful employment discrimination claim and three related, 3 unsuccessful causes of action). 4 counterclaims—cross-complaints in California’s lexicon. See Calvo Fisher & Jacob LLP 5 v. Lujan, 234 Cal. App. 4th 608, 623 (2015) (applying rule “where the plaintiff’s defense 6 against a cross-claim is necessary to success on the plaintiff’s contract claim”); Maxim 7 Crane Works, 208 Cal. App. 4th at 297 (applying rule where defense against an indemnity 8 cross-complaint was intertwined with defense against an underlying tort suit); Siligo v. 9 Castellucci, 21 Cal. App. 4th 873, 879 (1994) (applying same rule to fraud crossclaim 10 where the plaintiff “was required to defend against fraud in order to succeed on his 11 complaint to enforce” business-sale agreements). The rule can also apply, however, to defending 12 For the reasons explained above, Erhart’s and BofI’s claims were “so intertwined 13 that it would be impracticable, if not impossible, to separate” Erhart’s counsel’s “time into 14 compensable and noncompensable units.” See Maxim Crane Works, 208 Cal. App. 4th at 15 298. The fact that BofI has identified some time entries that are related only to its claims 16 does not prove otherwise. Rather, as mentioned, these entries indicate much of Erhart’s 17 counsel’s time was devoted to the litigation as whole, and it would be impracticable to now 18 divide up those hours, especially the time spent at trial. Consequently, when the Court 19 approaches this issue under California law for Erhart’s fee-shifting state law claim, the 20 Court likewise concludes no hours should be excluded from the lodestar to account for 21 BofI’s unsuccessful claims. 22 iii. Claims in Other Litigation 23 Moving beyond the claims in this dispute, BofI argues Erhart’s proposed lodestar 24 improperly includes fees for work performed in other litigation. (Opp’n 8:6–9:2.) For 25 example, Erhart’s fee request includes 111 hours spent on a California case, BofI Federal 26 Bank v. Cornell, Case No. 37-2016-00016599-CU-NP-CT. (Id. Ex. C, ECF No. 390-5.) 27 That litigation involved BofI’s efforts to recover purported confidential information that 28 Erhart placed on the defendant’s laptop. Erhart’s time entries also include six hours spent - 18 15cv2287 1 on another California state court case, Garrabrants v. Erhart, Case No. 37-2017- 2 00039440-CU-NP-CTL. (Id. Ex. D.) That lawsuit involved BofI’s CEO suing Erhart for 3 disclosing his private information. 4 Attorneys’ fees incurred outside the bounds of the litigation may be recoverable if 5 “the work product . . . was both useful and of a type ordinarily necessary to advance 6 the . . . litigation.” Armstrong v. Davis, 318 F.3d 965, 971 (9th Cir. 2003) (quoting Webb 7 v. Bd. of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 243 (1985)); see also Gates v. Gomez, 8 60 F.3d 525, 535 (9th Cir. 1995) (awarding attorneys’ fees for time expended filing amicus 9 brief in separate proceeding); Hasbrouck v. Texaco, Inc., 879 F.2d 632, 638 (9th Cir. 1989) 10 (same). For example, in Armstrong, the plaintiffs asked to recover fees for counsel’s work 11 on an amicus brief in a separate case before the Supreme Court. 318 F.3d at 971. The 12 district court reasoned this time was recoverable because the appeal “involved an issue 13 central to the litigation,” and it was both useful and necessary for counsel to file the brief. 14 Id. The Ninth Circuit affirmed, reasoning the Supreme Court was deciding an issue that 15 “was likely to have an important effect on the outcome in Armstrong.” Id. at 972. 16 Erhart does not invoke this authority or adequately respond to BofI’s challenge. He 17 fails to meet his burden to demonstrate the time spent in the two state court matters was 18 “necessary to advance” this litigation, i.e., his whistleblower retaliation claims. See 19 Armstrong, 318 F.3d at 971; see also Hiken, 836 F.3d at 1046 (“[A] court is not required 20 to ‘manufacture arguments’ on behalf of litigants.”). Nor does the Court find California’s 21 rule on intertwined claims applies here. The claims in those cases involved additional 22 parties and were not “so intertwined” with Erhart’s claims here that any allocation would 23 be impracticable or impossible. See Maxim Crane Works, 208 Cal. App. 4th at 298. Thus, 24 the Court excludes the hours listed in BofI’s Exhibits C and D from the lodestar. 25 26 27 28 - 19 15cv2287 1 2 2. Content of Entries The Court jointly addresses BofI’s remaining two arguments concerning the hours 3 reasonably expended on the litigation. As mentioned, BofI contends: (1) there are 4 numerous entries “for work that did not occur or did not occur on the dates claimed;” and 5 (2) there are various “other issues relating to the people who were doing the work, work 6 done prior to the filing of the lawsuit, the narratives provided, and block billing.” (Opp’n 7 9:3–10:7, 13:7–14:19.) These arguments call for the Court to step into the weeds. Keeping 8 in mind that the goal “is to do rough justice, not to achieve auditing perfection,” see Fox, 9 563 U.S. at 838, the Court includes an appendix that summarily resolves these challenges. 10 The result is that the Court will exclude 195.6 hours from the lodestar in light of these 11 arguments. 12 B. 13 The court next must determine a reasonable hourly rate for the lodestar calculation. 14 Roberts v. City of Honolulu, 938 F.3d 1020, 1023 (9th Cir. 2019). “The reasonable hourly 15 rate is determined by assessing ‘the prevailing market rate in the relevant community.’” Id. 16 at 1024 (quoting Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016)). The prevailing 17 market rate is the amount charged “in the community for similar work performed by 18 attorneys of comparable skill, experience, and reputation.” Camacho, 523 F.3d at 979 19 (quoting Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997)). 20 Reasonable Hourly Rate “It is the responsibility of the attorney seeking fees to submit evidence to support the 21 requested hourly rate.” Roberts, 938 F.3d at 1024. Satisfactory evidence includes 22 declarations from the “plaintiffs’ attorneys and other attorney[s] regarding prevailing fees 23 in the community.” Camacho, 523 F.3d at 980 (alteration in original) (quoting United 24 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Those 25 submissions, though, “do not conclusively establish the prevailing market rate.” Id. The 26 opposing party may submit evidence “challenging the accuracy and reasonableness” of the 27 moving party’s declarations. Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th 28 Cir. 1992)). - 20 15cv2287 1 Further, “courts may consider the fees awarded by others in the same locality for 2 similar cases.” Sam K. ex rel. Diane C. v. Hawaii Dep’t of Educ., 788 F.3d 1033, 1041 3 (9th Cir. 2015). Courts likewise may “use their ‘own knowledge of customary rates and 4 their experience concerning reasonable and proper fees.’” 5 Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011)). Id. (quoting Ingram v. 6 Erhart proposes the following hourly rates: $995 for his lead counsel, $625 for her 7 associate, $695 for another counsel, and $195 for paralegals. (Mot. 10:3–6.) BofI argues 8 these rates are unreasonably high for several reasons. 9 1. Relevant Community 10 BofI first argues that Erhart incorrectly relies “on declarations from attorneys based 11 outside of the San Diego area” to address “rates outside of the San Diego area.” (Opp’n 12 3:11–13.) Indeed, Erhart contends that because Sarbanes–Oxley cases are rare “in the 13 Southern District of California, the ‘relevant community’ is more properly the greater 14 Southern California / Los Angeles area, where all counsel in this case primarily practice.” 15 (Mot. 4:23–27.) In support, Erhart’s lead counsel declares she is “not aware of any 16 attorneys in the San Diego area who could or would have handled this case,” despite 17 knowing “all the leading plaintiffs’ employment attorneys in San Diego.” (Gillam Decl. ¶ 18 26.) BofI argues this claim is not only “insulting to San Diego’s employment attorneys” 19 but “also inconsistent with the prevailing law.” (Opp’n 7:2–7; see also Jardini Decl. ¶ 46 20 (“The San Diego bar has numerous plaintiff employment rights counsel who work on a 21 contingency issue.”).)7 22 23 7 24 25 26 27 28 Erhart objects to an attorney declaration submitted by BofI from André E. Jardini. (ECF No. 394-3.) Erhart’s objections violate this Court’s Standing Order for Civil Cases, which provides: “[O]bjections to evidence submitted in support of an opposition must be contained within the reply brief. No separate statements of objections will be allowed.” Erhart’s objections both run afoul of this rule and reinforce its purpose. Many of the objections are impermissible argument that quibble with the weight— not the admissibility—of Mr. Jardini’s declaration. (See id. (objecting to a statement about a law firm taking on Erhart’s case as being “delusional” and arguing Mr. Jardini lacks experience in Sarbanes–Oxley cases). To leave no doubt, the Court finds Mr. Jardini’s declaration relevant for determining a reasonable hourly rate, but the Court is independently assessing the caselaw and computing a lodestar for Erhart’s - 21 15cv2287 1 “Generally, when determining a reasonable hourly rate, the relevant community is 2 the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 3 979 (9th Cir. 2008). “However, rates outside the forum may be used ‘if local counsel was 4 unavailable, either because they are unwilling or unable to perform because they lack the 5 degree of experience, expertise, or specialization required to handle properly the case.’” 6 Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997) (quoting Gates, 987 F.2d at 1405).8 7 For example, in Gates, a district court properly used rates from San Francisco—in lieu of 8 Sacramento—where the plaintiffs “offered numerous declarations of San Francisco and 9 Sacramento attorneys” to “support their contention that Sacramento attorneys and law 10 firms with the requisite expertise and experience to handle [a] type of complex institutional 11 prison reform litigation were unavailable” in Sacramento. 987 F.3d at 1405. 12 Erhart’s attorneys are not the first ones to test the waters on this issue. The prevailing 13 rates in the Southern District of California are generally lower than the Central District of 14 California. E.g., T.B. v. San Diego Unified Sch. Dist., 293 F. Supp. 3d 1177, 1188 (S.D. 15 Cal. 2018). And it is commonplace for attorneys based in one district to solicit work in the 16 other. Courts nevertheless reject attorneys’ attempts to cherry-pick and run with higher 17 rates from the Central District. See, e.g., id. (rejecting argument “that the Central District 18 of California, where counsel maintain their offices, is the appropriate relevant 19 community”); Dalfio v. Hanna, No. 21-CV-910 JLS (AHG), 2022 WL 3578261, at *2 20 (S.D. Cal. Aug. 19, 2022) (rejecting attempt to use “significantly higher” rates from Los 21 Angeles); Bedwell v. Hampton, Tr. of Hampton Fam. Bypass Tr., No. 22cv138-LL-BGS, 22 2023 WL 3103806, at *5 (S.D. Cal. Apr. 26, 2023) (same). Further, Erhart’s counsel’s 23 statement about a lack of local counsel is unconvincing compared to the “numerous” 24 25 26 27 28 counsel. See Kries v. City of San Diego, No. 17-CV-1464-GPC-BGS, 2021 WL 120830, at *2–4 (S.D. Cal. Jan. 13, 2021). 8 California state law is comparable. The court must consider counsel’s “home market rate” instead of the “local market rate” when a plaintiff needs to hire out-of-town counsel because local counsel is unavailable. Caldera v. Dep't of Corr. & Rehab., 48 Cal. App. 5th 601, 609 (2020). - 22 15cv2287 1 declarations from Sacramento and San Francisco attorneys in Gates that supported the 2 unavailability of counsel in Sacramento. See 987 F.3d at 1405 & n.15. 3 Moreover, Erhart’s declaration does not persuasively demonstrate local counsel was 4 unavailable. Erhart states that when seeking counsel, he searched online for whistleblower 5 lawyers and “looked at numerous attorney websites,” but “did not find any that seemed to 6 offer the expertise [he] needed, including in the San Diego area.” (Erhart Decl. ¶ 3, ECF 7 No. 384-5.) He then reached out to a former colleague in New York who suggested 8 Erhart’s Los Angeles-based counsel. (Id. ¶ 4.) 9 By comparison, one court found a stronger showing on this issue to still be 10 insufficient. There, an Idaho plaintiff sought counsel for a disability discrimination action 11 against a well-resourced defendant: Union Pacific. Campbell v. Union Pac. R.R. Co., No. 12 4:18-CV-00522-BLW, 2022 WL 43878, at *4 (D. Idaho Jan. 4, 2022). The plaintiff stated 13 “that he ‘spoke with at least six different law firms in Idaho and surrounding States but was 14 unsuccessful in getting anyone to represent . . . [him] against Union Pacific,’ because ‘it 15 would take too long and they lacked the resources necessary’ to handle the case.” Id. at 16 *3. The court found this showing was inadequate to justify out-of-forum rates. Id. It 17 reasoned the plaintiff failed to provide specific details about his search, including the types 18 of firms he contacted, and the court was aware of local counsel who practiced in the 19 relevant area of law. Id. at *4. 20 The Court is unconvinced by Erhart’s weaker showing here; he does not state he 21 spoke with any counsel in the Southern District or provide other details about his search. 22 The undersigned is likewise knowledgeable of local, skilled counsel who practice in the 23 employment and wrongful termination context. Cf. Sam K. 788 F.3d at 1041 (providing 24 the court can draw on its own knowledge in the rate-setting context); see also Campbell, 25 2022 WL 43878, at *3; Howard G. v. Dep’t of Educ., No. CV 11-00523 DKW-RT, 2020 26 WL 2563275, at *14 (D. Haw. May 5, 2020). This case may have presented challenging 27 issues, but the Court rejects the claim that San Diego lacked counsel who “could have or 28 would have handled this case.” (See Gillam Decl. ¶ 26.) Consequently, the default rule - 23 15cv2287 1 applies. The relevant community for assessing a reasonable hourly rate is the Southern 2 District. See Camacho, 523 F.3d at 979. 3 2. Current vs. Historical Rates 4 Erhart asks the Court to use the current hourly rate for fees, instead of historical 5 rates. (Gillam Decl. ¶ 34.) BofI points out that these rates are significantly higher than 6 earlier years “when the lion’s share of the work was done.” (Opp’n 4:3–4.) For example, 7 according to an attorney rate report discussed below, the median hourly rate for a labor and 8 employment partner in San Diego was approximately $382 in 2015, compared to a median 9 of $456 in the second quarter of 2022—an increase of about 20%. (ECF No. 390-24.) 10 The Supreme Court has explained that “part of a ‘reasonable attorney’s fee’” may 11 include an adjustment for “for delay in payment.” Missouri v. Jenkins by Agyei, 491 U.S. 12 274, 282 (1989). Hence, “district courts have the discretion to compensate prevailing 13 parties for any delay in the receipt of fees by awarding fees at current rather than historic 14 rates in order to adjust for inflation and loss of the use funds.” Gates, 987 F.2d at 1406; 15 accord Bell v. Clackamas Cnty., 341 F.3d 858, 868 (9th Cir. 2003); Welch v. Metro. Life 16 Ins. Co., 480 F.3d 942, 947 (9th Cir. 2007). Alternatively, if the court chooses to enhance 17 the lodestar to compensate for the delay, “the amount of the enhancement must be 18 calculated using a method that is reasonable, objective, and capable of being reviewed on 19 appeal, such as by applying a standard rate of interest to the qualifying outlays of 20 expenses.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 555–56 (2010); see also In re 21 Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994) (explaining 22 that the court’s use of “the last rates charged by attorneys who left prior to the fee petition, 23 without a prime rate enhancement, inadequately compensate[d] the firm for the delay in 24 receiving its fees”). 25 The delay in payment here is significant—over seven years. Like others, the Court 26 finds an adjustment is necessary to compensate for this magnitude of delay. See, e.g., 27 Theme Promotions, Inc. v. News Am. Mktg. FSI, Inc, 731 F. Supp. 2d 937, 949–50 (N.D. 28 Cal. 2010). In compensating for the delay, a prime rate enhancement could lead to a higher - 24 15cv2287 1 fee award than applying current rates because of compound interest over a seven-year 2 period. See id. at 951, App. Table H. However, Erhart did not provide his counsel’s 3 historical hourly rates or propose a prime rate enhancement calculation. See Wit v. United 4 Behav. Health, 578 F. Supp. 3d 1060, 1075 (N.D. Cal. 2022) (noting prime rate 5 enhancement approach resulted in a higher lodestar than current rate calculation); Ryan v. 6 Editions Ltd. W., Inc., No. 5:06-CV-04812-PSG, 2016 WL 233093, at *5 (N.D. Cal. Jan. 7 19, 2016) (reasoning attorney’s failure to provide necessary variables “militates against the 8 use of the prime rate enhancement method of compensating for delay in payment”). The 9 Court thus will look to current rates. See Wit, 578 F. Supp. 3d at 1075 (using current rates 10 for a six-year delay); Oldoerp v. Wells Fargo & CompanyLong Term Disability Plan, No. 11 3:08-CV-05278 RS, 2014 WL 2621202, at *4 (N.D. Cal. June 12, 2014) (using current 12 rates for a case pending five years); Harlick v. Blue Shield of California, No. C 08-3651- 13 SC, 2013 WL 2422900, at *4 (N.D. Cal. June 3, 2013) (same). 14 3. Rates for Attorneys 15 The Court turns to assessing the prevailing market rate in the Southern District as of 16 the time of the fee petition. Beyond its own experience, the Court draws on three sources: 17 the attorney declarations submitted, a billing rate report, and analogous fee decisions from 18 the community. 19 Declarations. Erhart’s lead counsel, Gillam, submits a declaration setting forth her 20 qualifications and experience. Of note, she has been practicing law for more than forty- 21 four years. (Gillam Decl. ¶ 2.) After starting her career in Chicago, she worked for a 22 preeminent Los Angeles law firm before serving as an Assistant U.S. Attorney for six 23 years. (Id. ¶¶ 10–13.) Since 1994, Gillam has been in private practice with a decorated 24 career in the labor and employment context. (Id. ¶¶ 2–6; 18–19.) 25 Gillam’s associate, Heum, likewise submits a declaration. (Heum Decl., ECF No. 26 384-3.) Heum graduated from law school in 2012 and later joined Gillam’s firm in 2015. 27 (Gillam Decl. ¶ 36, Heum Decl. ¶ 2.) Therefore, as of the fee application, Heum had 28 - 25 15cv2287 1 approximately ten years of experience, with much of her time spent on employment 2 matters. (See Heum Decl. ¶ 2.) 3 The fee motion also includes declarations from several practitioners who vouch for 4 the proposed hourly rates. (Alexander Decl., ECF No. 384-4; Harrison Decl., ECF No. 5 384-7; Pine Decl., ECF No. 384-8; Zukerman Decl., ECF No. 384-9.) “That other 6 attorneys may think that a given rate is ‘reasonable’ does not necessarily say what the 7 prevailing market rates actually are.” Sam K. ex rel. Diane C. v. Hawaii Dep’t of Educ., 8 788 F.3d 1033, 1041 (9th Cir. 2015). This admonition is particularly warranted here, 9 where, as indicated above, there is a disconnect between the evidence submitted and the 10 relevant community. Three of the supporting declarants are Los Angeles-based litigators; 11 the remaining one is a partner at a Washington, D.C. firm. The Court thus assigns these 12 supporting declarations reduced weight on the issue of the prevailing rate in the San Diego 13 community. 14 Rate Report. BofI submits the Real Rate Report, a national publication that provides 15 statistical data on attorneys’ fees by location and practice areas. (2022 Rate Report, ECF 16 No. 390-25.) This report “has been cited with approval by courts inside and outside this 17 district.” Kries v. City of San Diego, No. 17-cv-1464-GPC-BGS, 2021 WL 120830, at *7 18 (S.D. Cal. Jan. 13, 2021); accord Sarabia v. Ricoh USA, Inc., No. 8:20-cv-00218-JLS- 19 KES, 2023 WL 3432160, at *8 (C.D. Cal. May 1, 2023); see also, e.g., Kohler v. Eddie 20 Bauer LLC, 792 F. App’x 446, 448 (9th Cir. 2019) (“The court reasonably considered the 21 2015 Real Rate Report (RRR), a national publication that provides statistical data on 22 attorneys’ fees by location and practice areas.”); Aispuro v. Ford Motor Co., No. 18-CV- 23 2045 DMS (KSC), 2020 WL 4582677, at *4 (S.D. Cal. Aug. 10, 2020) (looking to Real 24 Rate Report to help set prevailing rate for San Diego); Nguyen v. BMW of N. Am., LLC, 25 No. 3:20-CV-2432-JLS-BLM, 2023 WL 173921, at *3 (S.D. Cal. Jan. 12, 2023) (same). 26 The relevant category in the Real Rate Report is “Employment and Labor,” which 27 encompasses retaliation and wrongful termination cases. For employment and labor 28 partners in the San Diego area, the median hourly rate was $456, and the third quartile - 26 15cv2287 1 hourly rate was $553. (2022 Rate Report at 118.) For associates in this category, the 2 median hourly rate was $325, and the third quartile hourly rate was $380. (Id.) And more 3 broadly, for associates with seven or more years of experience in all practice areas, the 4 median is $380, and the third quartile is $421. (Id. at 27.) 5 Decisions. The Court also looks to rates awarded in this locality for analogous cases. 6 See Sam K., 788 F.3d at 1041. Unfortunately, Erhart points to no decisions for the Court’s 7 consideration, but instead faults BofI for not finding good enough comparisons in this 8 district. (Reply 3:9–11.) Erhart, of course, is the one who has the burden on this motion. 9 Notwithstanding Erhart’s failure to cite to any Southern District cases, the Court finds the 10 following data points helpful: 11 • In a 2020 civil rights and employment action containing retaliation claims, the court 12 found $550 an hour to be a reasonable rate for an attorney with fourteen years of 13 experience and $310 an hour reasonable for an attorney with one year of experience. 14 Kailikole v. Palomar Cmty. Coll. Dist., No. 18-CV-02877-AJB-MSB, 2020 WL 15 6203097 (S.D. Cal. Oct. 22, 2020). 16 • In a 2021 decision under the Fair Labor Standards Act, the court found $600 and 17 $650 hourly rates reasonable for partners with more than thirty years of experience. 18 The court also found $500 an hour reasonable for an attorney with fourteen years of 19 experience and $400 an hour reasonable for an attorney with six years of experience. 20 Kries, 2021 WL 120830, at *8. 21 • In a 2021 civil rights case, the court found $650 an hour reasonable for an attorney 22 with twenty-five years of experience and whose work “was of the highest quality.” 23 The court also found $485 an hour reasonable for an attorney with nine years of civil 24 rights experience. Soler v. Cnty. of San Diego, No. 14CV2470-MMA (RBB), 2021 25 WL 2515236, at *5 (S.D. Cal. June 18, 2021). 26 • In a 2022 defamation and federal Privacy Act decision, the court found $500 an hour 27 a reasonable rate for a lead counsel with fourteen years of experience and $425 an 28 hour reasonable for an attorney with eleven years of experience. Gallagher v. - 27 15cv2287 1 Philipps, No. 20CV00993-LL-BLM, 2022 WL 848329, at *3 (S.D. Cal. Mar. 22, 2 2022). 3 Attorney Hourly Rates. Having considered the items above, the Court finds $750 is 4 a reasonable hourly rate for Gillam. This rate is substantially higher than the median rate 5 in the Real Rate Report for partners in Gillam’s cohort, which reflects Gillam’s wealth of 6 experience and accolades. The rate also reflects that this case demanded more expertise 7 than required for a garden-variety wrongful termination or wage-and-hour action. Finally, 8 this rate reflects the Court’s assessment of the quality of the representation provided by 9 Gillam. As for Heum, the Court finds $505 is a reasonable rate, which is again substantially 10 higher than the median rate in the Real Rate Report for Heum’s cohort. This rate reflects 11 her decade of experience, particularly in labor and employment matters, and again accounts 12 for the nature of this case and the Court’s assessment of the quality of the representation 13 provided by Heum.9 14 4. Rate for Paralegals 15 As mentioned, Erhart also seeks to recover 780 hours of paralegal time at $195 an 16 hour, for a total of $152,000. (Gillam Decl. ¶ 37.) The same standard applies for discerning 17 the prevailing rate for paralegals. Holcomb v. BMW of N. Am., LLC, No. 18CV475 JM 18 (BGS), 2020 WL 759285, at *5 (S.D. Cal. Feb. 14, 2020) (quoting Payne v. Bay Area 19 Rapid Transit Dist., No. C 08-2098 WDB, 2009 WL 1626588, at *1 (N.D. Cal. June 5, 20 2009)). Despite this standard, BofI flags that Erhart provides no information for all but 21 22 23 24 25 26 27 28 9 Erhart also seeks to recover 40 hours of time spent by one additional attorney at a rate of $695. Erhart’s counsel provides only two sentences about this attorney’s background and qualifications, noting he is a former colleague who has worked at national firms and is experienced in securities matters. (Gillam Decl. ¶ 30.) His experience practicing law in California is unclear. However, unlike the unidentified paralegals discussed below, the Court can connect this attorney’s claimed time to a specific billing record. There is a single entry for 39.6 hours with the description: “Research and draft opposition to MSJ . . . (from 5/10/19-6/5/19).” Given the inadequate showing for this attorney’s experience and qualifications, the Court assigns a rate of $380 for this work—the median rate for associates with more than seven years of experience across all practice areas in San Diego. The Court also imposes a 10% haircut on these hours. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Hence, this component of the lodestar is $13,543.20 (35.4 hours x $380 rate). - 28 15cv2287 1 two of these supporting professionals. (Opp’n 4:2 n.3; see also Gillam Decl. ¶ 31.) For 2 example, timekeeper “KXG” worked 166 hours (ECF No. 384-10), but Erhart’s moving 3 papers provide no information about this individual (see Gillam Decl. ¶ 31), such as the 4 individual’s job title, experience, and educational background. 5 As for the two paralegals Erhart does identify, these are law graduates who 6 apparently worked on the case in its final phases. Their initials do not match any 7 timekeepers on the billing records through 2019. (See ECF No. 384-10 at 36.) In addition, 8 from 2019 onward, the billing records list only “Paralegal Paralegal” as the timekeeper and 9 do not identify the individual(s) who spent 461 hours’ worth of time on the case. (ECF 10 No. 384-12 at 52.) Hence, the Court cannot discern how much time the two identified law 11 clerks spent on the case compared to the various other individuals lumped under the 12 paralegal category. BofI is thus correct that “it is impossible to tell what work they actually 13 performed.” (Opp’n 13:14.) Erhart tries to fill in the gaps in his reply, but this pitfall is 14 paradigmatic of the tripwires Erhart has triggered throughout this case. See Townsend v. 15 Monster Beverage Corp., 303 F. Supp. 3d 1010, 1027 (C.D. Cal. 2018) (“‘New evidence 16 submitted as part of a reply is improper’ because it does not allow the defendant an 17 adequate opportunity to respond.”). He also does not introduce any evidence to support 18 $195 is the prevailing paralegal rate in the community. 19 Having reviewed the billing records and the parties’ arguments, the Court finds 20 Erhart’s showing is woefully inadequate. In a case this contentiously litigated, both 21 prudence and the law demanded Erhart specify the qualifications and time these individuals 22 spent before seeking $152,000 for their work. Because “insufficient facts were presented,” 23 the Court could deny the “request for reimbursement of paralegal fees.” See Zest IP 24 Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-CV-0541-GPC WVG, 2014 WL 25 6851612, at *6 (S.D. Cal. Dec. 3, 2014); see also Garrison v. Ringgold, No. 19CV244- 26 GPC(RBB), 2019 WL 5684401, at *4 (S.D. Cal. Nov. 1, 2019) (denying request for 27 paralegal fees that lacked supporting evidence); Brighton Collectibles, Inc. v. RK Texas 28 Leather Mfg., No. 10-CV-419-GPC WVG, 2014 WL 5438532, at *5 (S.D. Cal. Oct. 24, - 29 15cv2287 1 2014) (same). The Court is reluctant to do so, however, given the volume of challenged 2 paralegal work. 3 As another solution, some courts have reduced the hourly rate to the lower end of 4 the possible range to reflect the failure to provide information about the paralegals’ 5 experience. See, e.g., Sunbelt Rentals, Inc. v. Three Bros. Elec. Contractors, Inc., No. 1:21- 6 cv-01357 JLT SKO, 2023 WL 5103739, at *5 (E.D. Cal. Aug. 9, 2023); Freshko Produce 7 Servs., Inc. v. Write On Mktg., Inc., No. 1:18-cv-01703-DAD-BAM, 2019 WL 3798491, 8 at *3 (E.D. Cal. Aug. 13, 2019). The Court adopts this approach and assigns a rate of $115 9 an hour for the paralegal work. Cf. Holcomb, 2020 WL 759285, at *7 (adopting $100 an 10 hour rate for paralegals in the Southern District where evidence submitted for proposed 11 rate of $195 was inadequate). The Court also reduces the hours billed by 15% in light of 12 the paralegal time records being vague, listing unidentified timekeepers, and reflecting 13 clerical work, which results in an adjusted hour total of 662.92. See id. at *6; Missouri v. 14 Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989) (“Of course, purely clerical or secretarial 15 tasks should not be billed at a paralegal rate, regardless of who performs them.”). 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // - 30 15cv2287 1 *** 2 Considering the rulings above, the Court computes the initial lodestar below. 3 CG Timekeepers SH KKN 1,581.00 2,069.90 39.60 779.90 BofI Ex. C (22.20) (89.00) - - BofI Ex. D (1.00) (5.40) - - (82.80) - (13.40) - (4.00) (117.00) - 1,475.00 $750.00 1,962.10 $505.00 35.60 380.00 662.90 $115.00 $1,106,250.00 $990,860.50 $13,528.00 $76,233.50 4 Lodestar 5 Starting Hours PA 6 7 8 9 10 Court App. 1 Court n.9 11 12 13 Reasonable Hours Reasonable Rate $ 14 15 Subtotal 16 Total: $2,186,872.00 17 18 III. Reasonableness 19 “Although the analysis begins by multiplying a reasonable number of hours by a 20 reasonable rate, it does not end there.” Vargas v. Howell, 949 F.3d 1188, 1194 (9th Cir. 21 2020). The court next “determines whether to modify the lodestar figure, upward or 22 downward, based on factors not subsumed in the lodestar figure.” Kelly v. Wengler, 822 23 F.3d 1085, 1099 (9th Cir. 2016); accord Parsons v. Ryan, 949 F.3d 443, 466 (9th Cir. 24 2020). 10 25 26 27 28 10 The full list of factors is “set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975).” Carter v. Caleb Brett LLC, 757 F.3d 866, 868–69 (9th Cir. 2014). The Kerr factors are (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 - 31 15cv2287 1 The court should tread carefully, however, because there is “a ‘strong presumption 2 that the lodestar is sufficient.’” Chambers v. Whirlpool Corp., 980 F.3d 645, 665 (9th Cir. 3 2020) (quoting Perdue, 559 U.S. at 546). Enhancing the lodestar with “a multiplier is 4 warranted only in ‘rare and exceptional circumstances.’” Id. (quoting Perdue, 559 U.S. at 5 552); accord Kelly, 822 F.3d at 1102. 11 6 The positive adjustments upheld in Kelly, 822 F.3d at 1102–1105, illustrate these 7 circumstances. The Ninth Circuit held there was no abuse of discretion when the district 8 court applied 1.3 and 2.0 multipliers to two attorneys’ work on an action under the Prison 9 Litigation Reform Act—a context where fees are limited to “150 percent of the hourly rate 10 set for counsel appointed in criminal cases.” Id. at 1093. The court appropriately 11 considered counsel’s “excellent results for their clients under extreme time pressure” and 12 that “the quality of the work that produced these results [was] underrepresented in the 13 hourly fee.” Id. (alteration in original). So, too, did the court properly consider that an 14 enhancement was necessary to attract competent counsel in the PLRA context because of 15 the limitation on recoverable fees. Id. 16 A downward adjustment may be appropriate in other circumstances. The court 17 referenced one such context above: where a plaintiff achieved “limited success.” Hensley, 18 461 U.S. at 436–37; see also Ibrahim, 912 F.3d at 1172–80. As mentioned, if the plaintiff 19 has both “prevailing and unsuccessful but related claims,” the court can consider whether 20 21 22 23 24 25 26 27 28 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. Id. at 869. Aside from many of these factors being subsumed in the lodestar, “one factor is no longer valid—whether the fee was fixed or contingent.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 942 n.7 (9th Cir. 2011); see also Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996). 11 One extraordinary circumstance is where “an attorney’s performance involves exceptional delay in the payment of fees.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 556 (2010). The Court already accounted for this circumstance above by calculating the lodestar with current hourly rates. See id. - 32 15cv2287 1 the “level of success” justifies “a full fee award.” Ibrahim, 912 F.3d at 1172. For example, 2 where a plaintiff “initially sued several defendants, but prevailed against only one,” the 3 court may apply a “reduction to reflect that kind of limited success.” Webb, 330 F.3d at 4 1168. 5 Erhart argues the “Kerr factors overwhelmingly support an upward adjustment of 6 the lodestar by a factor of not less than 2.0.” (Mot. 10:21–22.) BofI contends many of 7 these factors are subsumed in the Court’s lodestar analysis and argues the remaining factors 8 are either inapplicable or weigh in favor of a downward adjustment. (Opp’n 15:15–20:13.) 9 The Court agrees that its lodestar analysis above subsumes many of the Kerr factors, see 10 supra note 10, and addresses several of the parties’ arguments below. 11 Degree of Success. The Court considers “the degree of success obtained,” which “is 12 ‘the most critical factor’ in determining the reasonableness of a fee award.” Bravo v. City 13 of Santa Maria, 810 F.3d 659, 666 (9th Cir. 2016) (quoting Farrar v. Hobby, 506 U.S. 103 14 (1992)); see also Kerr, 526 F.2d at 70 (providing the court should consider “the amount 15 involved and the results obtained”). Although “the amount of damages recovered is 16 relevant to the amount of attorney’s fees awarded,” the Ninth Circuit has “instructed that 17 ‘courts should not reduce lodestars based on relief obtained simply because the amount of 18 damages recovered on a claim was less than the amount requested.’” Evon v. L. Offs. of 19 Sidney Mickell, 688 F.3d 1015, 1033 (9th Cir. 2012) (quoting Quesada v. Thomason, 850 20 F.2d 537, 539 (9th Cir. 1988)). Indeed, in Bravo, where the plaintiffs “won only $5,002 at 21 trial” but achieved a public benefit and recovered $360,000 from settling with other 22 defendants, the district court appropriately awarded the plaintiffs $1.023 million in 23 attorneys’ fees. 810 F.3d at 666. 24 The Court is persuaded that the lodestar calculated above is reasonable considering 25 the success Erhart obtained. Erhart failed to prevail on some of his many claims, but these 26 unsuccessful claims were related to his successful claims that reached the jury. Hence, a 27 deduction for limited success is not appropriate here. See Ibrahim, 912 F.3d at 1172; see 28 also Hensley, 461 U.S. at 435 (“In these circumstances the fee award should not be reduced - 33 15cv2287 1 simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”). 2 Further, even though Erhart may not have recovered as large of a recovery as he had hoped 3 for, he still obtained an excellent result. He prevailed on his surviving whistleblower 4 retaliation claims and defeated all the Bank’s counterclaims after over seven years of 5 litigation. 6 2118637, at *7 (D. Nev. May 24, 2011) (reasoning plaintiffs’ success on their Sarbanes– 7 Oxley claim after “protracted litigation for a period of more than six years” was significant, 8 despite that their $2 million recovery was “small in comparison with the amount Plaintiffs 9 requested at trial”). And his recovery for reputational and emotional distress damages was 10 substantial; this case is not one where the jury awarded nominal damages or where Erhart 11 settled his claims for nuisance value. See, e.g., Bravo, 810 F.3d at 672. Cf. Van Asdale v. Int’l Game, Tech., No. 3:04-CV-00703-RAM, 2011 WL 12 At the same time, the Court is unpersuaded that Erhart’s degree of success justifies 13 an upward adjustment to the lodestar or the requested 2.5 multiplier. Cf. Kelly, 822 F.3d 14 at 1103–04 (reasoning enhancement was appropriate where counsel’s “rare” and 15 “exceptional” representation included “excellent results . . . under extreme time pressure”). 16 BofI’s countervailing arguments likewise fall short. The Bank criticizes the proportionality 17 of Erhart’s damages recovery to his attorneys’ fees and contends a downward adjustment 18 is appropriate. (Opp’n 18:7–19:5) Yet the Bank is well-aware that its litigation strategy 19 required Erhart’s counsel to spend more time on this dispute. BofI undoubtedly “had the 20 right to play hardball in contesting” Erhart’s claims, but it is also appropriate for the Bank 21 “to bear the cost” of its all-out strategy. See Burgess v. Premier Corp., 727 F.2d 826, 841 22 (9th Cir. 1984). In short, having assessed Erhart’s degree of success, the Court finds the 23 $2,186,872.00 lodestar is reasonable. 24 Awards in Similar Cases. The Court can consider awards in similar cases to gauge 25 the reasonableness of the lodestar. Kerr, 526 F.2d at 70. Erhart contends “there are so few 26 verdicts in [Sarbanes–Oxley] cases that it is hard to compare results, except to note that 27 most of them never get to a jury.” (Mot. 12:19–25.) The Court agrees the dataset is limited, 28 but what is available does not support an adjustment here. In Van Asdale, the Sarbanes– - 34 15cv2287 1 Oxley plaintiffs recovered approximately $2 million in damages and reasonably expended 2 about 3,300 hours on the protracted litigation. 2011 WL 2118637, at *1, 4. The court 3 awarded $1.08 million in attorneys’ fees and “saw no basis for making any further 4 enhancement or reduction” after considering the relevant Kerr factors. Id. at *5. Also, in 5 McEuen v. Riverview Bancorp, Inc., No. C12-5997 RJB, 2014 WL 2197851, at *1 (W.D. 6 Wash. May 27, 2014), the Sarbanes–Oxley plaintiff accepted an offer of judgment for 7 $110,000 on the eve of trial. The court awarded $430,000 in attorneys’ fees for 1,638 hours 8 of work in a “hotly contested” dispute. Id. at *7–8. The court also found no adjustment to 9 the lodestar was appropriate. Id. at *7. Having reviewed the circumstances of those cases, 10 the court finds these comparable awards show Erhart’s lodestar is within the bounds of 11 reasonableness. Those awards do not, however, persuade the Court that the circumstances 12 here are exceptional and justify an enhancement—or a downward adjustment, for that 13 matter. See Perdue, 559 U.S. at 552. Remaining Factors. 14 The Court has considered the parties’ arguments on the 15 remaining factors, including time limitations and the claimed undesirability of the case. 16 (See Mot. 11:20–12:25; Opp’n 17:8–20:13.) On balance, the Kerr factors show no 17 adjustment to the lodestar is appropriate. The Court finds the “strong presumption that the 18 lodestar is sufficient” carries here. See Perdue, 559 U.S. at 549. 19 IV. State Law Multiplier 20 Finally, although the Court will not enhance the lodestar under federal law, the Court 21 considers whether it is nonetheless appropriate to do so under state law. “Unlike federal 22 law, California law allows for a multiplier of the lodestar to compensate for the risk of 23 contingent representation.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1112 (9th 24 Cir. 2014) (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1135–38 (2001)). This distinction 25 stems from City of Burlington v. Dague, 505 U.S. 557, 567 (1992), where the Supreme 26 Court held a federal fee-shifting statute authorizing reasonable attorneys’ fees does not 27 permit an “enhancement for contingency” to the lodestar. The California Supreme Court 28 later declined to adopt the policy arguments underpinning Burlington and reaffirmed that - 35 15cv2287 1 a lodestar enhancement is available for “contingent risk” under state law. Ketchum, 24 2 Cal. 4th at 1138. 3 Hence, when considering whether to adjust a lodestar, California courts assess “the 4 contingent nature of the fee award,” along with “the novelty and difficulty of the questions 5 involved,” “the skill displayed in presenting them,” and “the extent to which the nature of 6 the litigation precluded other employment by the attorneys.” California DUI Laws. Assn. 7 v. Dep’t of Motor Vehicles, 77 Cal. App. 5th 517, 535–36 (2022). Yet the court “should 8 not consider these factors to the extent they are already encompassed within the lodestar.” 9 Ketchum, 24 Cal. 4th at 1138. For example, the skill factor is particularly “susceptible to 10 improper double counting; for the most part, the difficulty of a legal question and the 11 quality of representation are already encompassed in the lodestar.” Id. Similarly, where 12 the reasonable hourly rates used in the lodestar are already adjusted for contingency risk, a 13 court should not “consider that factor again in determining whether to apply an 14 enhancement.” California DUI Laws. Assn., 77 Cal. App. 5th at 537. “Of course, the trial 15 court is not required to include a fee enhancement to the basic lodestar figure for contingent 16 risk” or the other factors. Ketchum, 24 Cal. 4th at 1138; see also Kennedy Comm’n v. City 17 of Huntington Beach, 91 Cal. App. 5th 436, 467 (2023) (“The award of a multiplier is in 18 the end a discretionary matter largely left to the trial court.”). 19 The purpose of an adjustment based on contingency risk “is to fix a fee at the fair 20 market value for the particular action.” Ketchum, 24 Cal. 4th at 1132. The court, in effect, 21 “determines, retrospectively, whether the litigation involved a contingent risk . . . justifying 22 augmentation of the unadorned lodestar in order to approximate the fair market rate for 23 such services.” Id. The party seeking a multiplier bears the burden of proof. Id. at 1138. 24 Erhart correctly identifies the Court may consider contingency risk for his state law 25 fee-shifting claim. (Mot. 5 n.1.) His counsel states this case “was a huge risk as a 26 contingency matter” given the scope of litigation, including “scores of depositions of 27 current and former employees and three experts.” (Gillam Decl. ¶ 22; see also id. ¶ 35.) 28 The declarations from supporting practitioners mentioned above likewise express that - 36 15cv2287 1 contingency enhancements are necessary in circumstances like here to compensate for the 2 risk Erhart’s counsel assumed. (Pine Decl. ¶¶ 14–15; Harrison Decl. ¶¶ 39, 40–42.) The 3 Bank’s Opposition argues no multiplier is appropriate but does not wade into California 4 law on contingency enhancements, which is unsurprising given BofI believes Erhart is not 5 entitled to recover fees under state law.12 6 Comparable cases span the spectrum. And they often involve additional factors 7 aside from contingency risk. See, e.g., Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776 8 (9th Cir. 2018) (affirming 2.0 state law multiplier where court considered counsel’s 9 “substantial financial risk,” “the difficulty of representing prisoners with the . . . highest 10 security classifications,” and “the opportunity costs the years-long litigation” required); 11 Sargent v. Bd. of Trustees of Cal. State Univ., 61 Cal. App. 5th 658, 675 (2021) (affirming 12 2.0 multiplier based on “novelty and difficulty of the questions presented, the skill 13 displayed in presenting them, and the extent to which the nature of the litigation precluded 14 other employment”); Polee v. Cent. Contra Costa Transit Auth., 516 F. Supp. 3d 993, 1003 15 (N.D. Cal. 2021) (awarding 1.2 state law multiplier “to account for the contingent risk and 16 preclusion of other work, as well as the results obtained, which as noted supra consisted of 17 a significant monetary award to a civil rights plaintiff as well as conferring a public 18 benefit”); Herron v. Cnty. of Los Angeles, No. B295184, 2021 WL 5818378, at *12 (Cal. 19 Ct. App. Dec. 8, 2021) (affirming trial court’s denial of multiplier in employment case 20 where results were modest, lawyers were competent but not highly skilled, and the market 21 rate of the plaintiff’s attorneys adequately compensated for their contingency risk and 22 23 12 24 25 26 27 28 BofI’s expert declaration addresses this point and cites a California Court of Appeal decision, Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 (1998), to argue a contingency enhancement is inappropriate here. (Jardini Decl. ¶ 65.) This legal argument belongs in a brief, not an expert declaration. Regardless, the Weeks decision predates the seminal California Supreme Court case on contingency enhancements and is therefore questionable authority. See Rodriguez v. Cal. Dep’t of Just., No. C064756, 2012 WL 272135, at *16 (Cal. Ct. App. Jan. 31, 2012) (“To the extent the Weeks court downplayed the significance of the contingent nature of a fee award in a FEHA case as a basis for applying a multiplier, we find that court’s discussion inconsistent with our Supreme Court’s later discussion of the contingency factor in Ketchum v. Moses”). - 37 15cv2287 1 skill); McElwain v. Kaiser Found. Hosps., No. G055049, 2018 WL 6696696, at *4–5 & 2 n.4 (Cal. Ct. App. Dec. 20, 2018) (affirming negative multiplier in discrimination case 3 where market rates compensated for contingency risk and plaintiff achieved limited 4 success). 5 Here, the Court underscores that it “is not required to include a fee enhancement to 6 the basic lodestar figure for contingent risk.” Ketchum, 24 Cal. 4th at 1138 (emphasis 7 omitted). Moreover, Erhart does not persuasively show the requested 2.0 to 3.0 multiplier 8 is justified based on contingency risk—or any other factor. Ultimately, having considered 9 Erhart’s counsel’s submissions, this case’s circumstances, and the caselaw, the Court finds 10 a modest multiplier of 1.1 is appropriate to account for contingency risk, which adjusts the 11 fee total from $2,186,872.00 to $2,405,559.20. 12 CONCLUSION 13 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 14 Erhart’s Motion for Attorneys’ Fees. The Clerk of Court shall enter an amended judgment 15 that awards Erhart $2,405,559.20 in attorneys’ fees. 16 17 DATED: September 28, 2023 18 19 20 21 22 23 24 25 26 27 28 - 38 15cv2287 Appendix 1: Challenges to Accuracy & Content of Time Entries Challenge Date Work in entry did 9/5/2016 not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Name CG Narrative Draft documents: Finalize motion opp docs Hours Hours Explanation Claimed Excluded 3.3 3.3 See Fischer v. SJB-P.D. Inc. , 214 F.3d 1115, 1121 (9th Cir. 2000) (noting court may reduce a fee request that is “not based on contemporaneous records,” “poorly documented,” or “excessive”) 10/13/2016 CG Deposition: Prep for and 9.2 defend client depo 9.2 See Fischer , 214 F.3d at 1121 3/15/2017 CG Deposition: Prep client for depo 1.4 1.4 See Fischer , 214 F.3d at 1121 3/16/2017 CG Deposition: Prep for and 8.8 defend client depo 8.8 See Fischer , 214 F.3d at 1121 3/20/2017 CG Court hearing: Prep for and attend MSC 8.3 8.3 Counsel concedes this entry was a mistake 3/22/2017 CG Draft documents: Draft opp to motion for reconsideration 1.9 1.9 See Fischer , 214 F.3d at 1121 -1- 15cv2287 Challenge Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Date Name Narrative Hours Hours Explanation Claimed Excluded 0.3 0.3 See Fischer , 214 F.3d at 1121 3/12/2018 CG Draft documents: Review, revise notice of interested parties 3/13/2018 CG Deposition: Prep for and 7.7 take Tolla depo (+PMQ) 0.0 Counsel satisfactorily explains there was a typographical error 9/5/2018 CG Draft documents: 0.4 Review and review joint motion for PO 0.4 See Fischer , 214 F.3d at 1121 10/14/2018 CG Draft documents: 0.2 Review and revise joint motion re disco dispute 5 0.2 See Fischer , 214 F.3d at 1121 11/11/2018 CG Draft documents: 2.2 Research and draft reply to MJP 2.2 See Fischer , 214 F.3d at 1121 Deposition: Prep for Koll depo 0.8 See Fischer , 214 F.3d at 1121 12/2/2018 CG 3.3 -2- 15cv2287 Challenge Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Date Name 12/3/2018 CG 12/4/2018 CG 12/13/2018 CG Hours Hours Explanation Claimed Excluded Deposition: Prep for and 9.9 2.5 See Fischer , 214 F.3d at 1121 travel to Koll depo in Texas Narrative Deposition: Prep for and 12.2 take Koll depo in Texas, return to LA 3.1 See Fischer , 214 F.3d at 1121 Draft documents: 0.4 Review and revise jt motion on disco dispute 7 Draft documents: 8.8 Research and draft opp to MSJ 0.4 See Fischer , 214 F.3d at 1121 8.8 See Fischer , 214 F.3d at 1121 6/13/2019 CG 6/14/2019 CG Draft documents: Finalize opp to MSJ (numerous docs) 5.1 5.1 See Fischer , 214 F.3d at 1121 6/26/2019 CG R&D Reply brief to Daubert motion R&D Opp MSJ R&D joint statement 10.6 10.6 See Fischer , 214 F.3d at 1121 -3- 15cv2287 Challenge Date Name Narrative Hours Hours Explanation Claimed Excluded 0.0 Counsel satisfactorily explains there was a 3.4 typographical error Work in entry did 6/27/2019 not occur or did not occur on the date claimed Work in entry did 8/15/2019 not occur or did not occur on the date claimed Work in entry did 8/16/2019 not occur or did not occur on the date claimed CG Draft documents: Finalize pleadings re motions CG Draft documents: 0.4 Review and revise joint motion re disco dispute 4 0.4 See Fischer , 214 F.3d at 1121 CG Draft documents: 1.6 Review and revise ex parte app, supporting dec to continue deadline to bring motion re disco responses 0.0 Counsel satisfactorily explains there was a typographical error Work in entry did 8/21/2019 not occur or did not occur on the date claimed Work in entry did 8/22/2019 not occur or did not occur on the date claimed Work in entry did 9/4/2019 not occur or did not occur on the date claimed CG Review documents: Review opp to ex parte app 0.2 0.0 Counsel satisfactorily explains there was a typographical error CG Review documents: 0.1 Review order denying ex parte app 0.0 Counsel satisfactorily explains there was a typographical error CG Review documents: 0.3 Review detailed order re MTC 0.3 See Fischer , 214 F.3d at 1121 -4- 15cv2287 Challenge Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Date Name Narrative Hours Hours Explanation Claimed Excluded 0.0 Counsel satisfactorily explains there was a 0.6 typographical error 9/5/2019 CG Review documents: Review motion for judgment on pleadings 9/6/2019 CG 0.4 0.4 See Fischer , 214 F.3d at 1121 9/6/2019 CG 1.2 0.0 Counsel satisfactorily explains there was a typographical error 9/22/2019 CG 2.2 0.0 Counsel satisfactorily explains there was a typographical error 9/24/2019 CG Draft documents: Review and revise joint motion re experts scheduling Draft documents: Review motion for amended scheduling order Draft documents: Research and draft opp to motion for judgment on pleadings Draft documents: Review and revise dec ISO opp to MJP 0.3 0.0 Counsel satisfactorily explains there was a typographical error 9/24/2019 CG Draft documents: Draft section on UCL 0.6 0.0 Counsel satisfactorily explains there was a typographical error -5- 15cv2287 Challenge Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Work in entry did not occur or did not occur on the date claimed Date Name 9/25/2019 CG 9/26/2019 CG 10/3/2019 CG 4/11/2021 CG 4/12/2021 4/13/2021 Narrative Draft documents: Finalize opp to motion for judgment on pleadings Review documents: Review order granting motion to continue trial Hours Hours Explanation Claimed Excluded 0.0 Counsel satisfactorily explains there was a 1.7 typographical error 0.2 0.2 See Fischer , 214 F.3d at 1121 Review documents: 0.2 Review reply to motion for judgment on pleadings Draft documents: R&D 2.6 opps to MILS 0.2 See Fischer , 214 F.3d at 1121 0.0 Counsel satisfactorily explains there was a typographical error CG Draft documents: R&D opps to MILS 1.5 0.0 Counsel satisfactorily explains there was a typographical error CG Draft documents: Finalize opps to MILS 2.2 0.0 Counsel satisfactorily explains there was a typographical error -6- 15cv2287 Challenge Date Name Narrative Hours Hours Explanation Claimed Excluded 1.2 See Fischer , 214 F.3d at 1121 1.2 Work in entry did 1/27/2022 not occur or did not occur on the date claimed CG Court hearing: Prep for and attend status conference (court confirm trial proceeding on 2/1/22) Work in entry did 4/16/2022 not occur or did not occur on the date claimed Work in entry did 8/29/2022 not occur or did not occur on the date claimed Ehart provides Various insufficient details for paralegals CG Draft documents: Draft TCR, exhibit thereto 1.3 1.3 See Fischer , 214 F.3d at 1121; CG Trial: Prep and deliver closing, rebuttal 7.9 0.0 Counsel satisfactorily explains there was a typographical error PA Various 779.9 117.0 See supra Order Part II.B.4 (discussing inadequate paralegal entries) -7- 15cv2287 Challenge Date Name Hours Hours Explanation Claimed Excluded Review client docs: 2.6 2.6 See Hensley v. Eckerhart, 461 U.S. 424, Review client docs, 434 (1983) (providing the fee claimant has research and draft SEC the burden to demonstrate that the number whistleblower complaint of hours spent was “reasonably necessary” necessities to the litigation and that counsel made “a good faith effort to exclude from [the] fee request hours that are excessive, redundant, or otherwise unnecessary”); see also Webb v. Bd. of Educ. of Dyer Cnty., Tenn. , 471 U.S. 234, 235 (1985) (reasoning no abuse of discretion to exclude prelitigation time where plaintiff did not show the work performed “was both useful and of a type ordinarily necessary to advance the . . . litigation”) Narrative Work done prior to 3/22/2015 lawsuit that is not necessary precursor to the suit CG Work done prior to 4/10/2015 lawsuit that is not necessary precursor to the suit CG Draft documents: Research and draft IRS complaint 1.9 1.9 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 Work done prior to 4/13/2015 lawsuit that is not necessary precursor to the suit CG Draft documents: 2.3 Research and draft TCR 2.3 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 -8- 15cv2287 Challenge Date Name Hours Hours Explanation Claimed Excluded Correspond with: Emails 1.1 1.1 See Hensley , 461 U.S. at 434; see also with associate, staff re Webb , 471 U.S. at 235 more revisions to SEC TCR Narrative Work done prior to 4/15/2015 lawsuit that is not necessary precursor to the suit CG Work done prior to 4/16/2015 lawsuit that is not necessary precursor to the suit CG Correspond with: Emails 0.2 with staff confirming SEC must sign for package with complaint, USB 0.2 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 Work done prior to 4/30/2015 lawsuit that is not necessary precursor to the suit CG Correspond with: Email 0.1 from IRS re WB complaint 0.1 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 Work done prior to 5/18/2015 lawsuit that is not necessary precursor to the suit CG Correspond with: emails 0.2 t/f client re NYT reporter reached out (Said ignore for now) 0.2 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 Work done prior to 7/24/2015 lawsuit that is not necessary precursor to the suit CG Correspond with: emails 0.2 t/f client re speaking to reporter 0.2 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 -9- 15cv2287 Challenge Date Name Hours Hours Explanation Claimed Excluded Telecon: telecom 0.3 0.3 See Hensley , 461 U.S. at 434; see also w/client re press inquiry Webb , 471 U.S. at 235 etc. Narrative Work done prior to 7/26/2015 lawsuit that is not necessary precursor to the suit CG Work done prior to 8/17/2015 lawsuit that is not necessary precursor to the suit CG Telecon: Prep for and telecom w/Eavis 0.2 0.2 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 Work done prior to 8/22/2015 lawsuit that is not necessary precursor to the suit CG Review documents: 0.3 review extensive article re BofI; emails re same 0.3 See Hensley , 461 U.S. at 434; see also Webb , 471 U.S. at 235 Work done during lawsuit that is not reasonably necessary 10/14/2015 SH Calls re various public 1.1 inquiries, correspondence w/ CG and individuals re same. 1.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook v. City of Westminster , 177 F.3d 839, 877 (9th Cir. 1999) (noting court has discretion to determine if “media and public relations activities . . . contributed directly and substantially to” the plaintiff’s victory) Work done during lawsuit that is not reasonably necessary 10/14/2015 SH Call w/ SEC re files. 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 0.1 - 10 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name 12/16/2015 CG Narrative Telecon SEC re filing amicus brief; discuss same with client Hours Hours Explanation Claimed Excluded See Hensley , 461 U.S. at 434; see also 0.3 0.3 Fischer , 214 F.3d at 1121 4/1/2016 CG Telecon: telecom with 0.9 SEC and then with client re WB protections 0.9 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 4/11/2016 CG Review documents: 0.3 Review Houston MPES amended complaint 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 4/20/2016 SH Review Houston complaint, correspondence. 0.4 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 8/17/2016 SH Review media coverage, 0.9 corr. w/ client and CG re case, discovery. Review doc production from Bofl. 0.3 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 2/22/2017 SH Review media re case. 0.3 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 0.3 - 11 - 15cv2287 Challenge Date Name Narrative Hours Hours Explanation Claimed Excluded See Hensley , 461 U.S. at 434; see also 1.8 1.8 Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 Work done during lawsuit that is not reasonably necessary 3/3/2017 SH Draft press release and correspondence re rulings on MTQ and MSA. Corr. w/ CG re same. Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary 3/13/2017 SH Review whistleblower news relevant to case. 0.4 0.4 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 4/8/2017 CG 0.2 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 4/25/2017 SH Review documents: 0.4 Review numerous media stories about case, holding Draft response re media 0.3 inquiry. 0.3 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 9/14/2017 SH Draft submission to media re MTD. 0.3 0.3 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 1/8/2018 SH Review corr. from AAA 0.1 re hearing date. 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 - 12 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name 7/2/2018 CG 8/5/2018 CG 10/29/2018 SH Hours Hours Explanation Claimed Excluded Correspond with: Emails 0.2 See Hensley , 461 U.S. at 434; see also 0.0 re dismissal of Fischer , 214 F.3d at 1121 shareholder suits Narrative Correspond with: Emails 0.3 t/f client re status of SEC investigation, TCRs etc. 0.3 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 Review corr. re cocounsel. 0.2 0.2 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 5/17/2019 SH Review file, prep 2.1 materials for possible cocounsel. 2.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 4/1/2020 CG Review documents: 0.8 Review court’s 90 page ruling on MSJs; emails with client, press re same 0.2 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 4/1/2020 SH Review correspondence 0.1 from CNS re Court Order 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 - 13 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name Hours Hours Explanation Claimed Excluded Various correspondence 0.2 See Hensley , 461 U.S. at 434; see also 0.2 with CG re CNS inquiry Fischer , 214 F.3d at 1121; Gilbrook , 177 re Court order F.3d at 877 Narrative 4/1/2020 SH 4/1/2020 SH Review documents: news re MSJ 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 4/6/2020 CG Correspond with: Review notice of withdrawal 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 4/6/2020 SH Review documents: notice of withdrawal 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 4/9/2021 SH Correspond with CG re class case 0.1 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 4/9/2021 SH Correspond with counsel 0.1 re class case 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 - 14 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name 4/10/2020 CG 2/10/2021 SH 2/10/2021 Narrative Review documents: Review national publication article on MSJ ruling Analyze issues re Houston lawsuit, corr. w/ CG re same Hours Hours Explanation Claimed Excluded See Hensley , 461 U.S. at 434; see also 0.2 0.1 Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 0.5 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 SH Review correspondence 0.1 from CG re Houston lawsuit 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 7/26/2021 CG Correspond with: Emails 0.1 t/f counsel in SH. Suit v. BofI 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 10/5/2021 PA Attorney conference with Benson (class action against BofI) 0.5 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 10/8/2021 PA Check witness information for Benson 0.2 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 - 15 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name 10/12/2021 PA Hours Hours Explanation Claimed Excluded Call to Benson, attorneys 0.7 See Hensley , 461 U.S. at 434; see also 0.0 in class action against Fischer , 214 F.3d at 1121 BofI Narrative 12/28/2021 SH Interoffice correspondence re Mika’s appearance 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 12/28/2021 SH Interoffice correspondence re Mika’s appearance 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 12/28/2021 SH Interoffice correspondence re Mika’s appearance 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 12/28/2021 SH Interoffice 0.1 correspondence re notice of appearance further 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 12/29/2021 SH Interoffice correspondence re counsel agreements 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 0.1 - 16 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name 12/29/2021 SH 12/29/2021 SH 12/29/2021 SH 1/14/2022 SH 1/14/2022 SH 1/19/2022 SH Narrative Interoffice correspondence re counsel agreements further Interoffice correspondence re counsel agreements further Review documents: executed fee sharing consent form Hours Hours Explanation Claimed Excluded See Hensley , 461 U.S. at 434; see also 0.1 0.1 Fischer , 214 F.3d at 1121 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 Interoffice correspondence re emails re MH appearance Research re MH appearance issues 0.4 0.4 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 Interoffice correspondence re arb stip 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 - 17 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name 2/8/2022 SH 2/8/2022 SH 2/8/2022 SH 2/23/2022 Narrative Interoffice correspondence re emails re BofI shareholder suit Research re BofI shareholder suit settlement Hours Hours Explanation Claimed Excluded See Hensley , 461 U.S. at 434; see also 0.3 0.0 Fischer , 214 F.3d at 1121 0.1 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 Interoffice correspondence re BofI shareholder suit further 0.1 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 SH Research re D-F issue 0.1 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 3/17/2022 SH Interoffice correspondence re MH withdrawal 0.2 0.2 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 3/17/2022 SH Research re MH withdrawal 0.1 0.1 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 - 18 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Date Name Narrative Hours Hours Explanation Claimed Excluded See Hensley , 461 U.S. at 434; see also 0.1 0.1 Fischer , 214 F.3d at 1121 3/17/2022 SH Interoffice correspondence re MH withdrawal 3/22/2022 SH Review documents withdrawal motion for Mika 0.2 0.2 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 3/22/2022 SH 0.2 0.2 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 3/22/2022 SH Interoffice correspondence re withdrawal motion for Mika Interoffice correspondence re appearance at hearing 0.3 0.3 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 3/29/2022 SH Correspond with CG re securities case 0.1 0.0 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121 5/23/2022 SH Draft documents press release re verdict 0.8 0.8 See Hensley , 461 U.S. at 434; see also Fischer , 214 F.3d at 1121; Gilbrook , 177 F.3d at 877 (noting hours spent publicizing verdicts not compensable) - 19 - 15cv2287 Challenge Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Work done during lawsuit that is not reasonably necessary Time spent on fee motion is excessive Date Name 5/24/2022 SH 6/10/2022 SH 6/24/2022 SH Various CH SH PA Totals: CH SH PA Hours Hours Explanation Claimed Excluded Further edit press release 2.1 See Hensley , 461 U.S. at 434; see also 2.1 and submit to outlets, Fischer , 214 F.3d at 1121; Gilbrook , 177 interoffice corr. re same F.3d at 877 (noting hours spent publicizing verdicts not compensable) Draft documents: See Hensley , 461 U.S. at 434; see also 0.4 0.4 answers to verdict writeFischer , 214 F.3d at 1121; Gilbrook , 177 up questions F.3d at 877 (noting hours spent publicizing verdicts not compensable) Review documents: FAC 0.1 See Hensley , 461 U.S. at 434; see also 0.1 re verdict write-up, corr. Fischer , 214 F.3d at 1121; Gilbrook , 177 w/ CG re same F.3d at 877 (noting hours spent publicizing verdicts not compensable) Preparation of fee Erhart is entitled to recover fees for seeking 100.4 0 motion fees, see Gonzalez v. City of Maywood , 729 F.3d 1196, 1210 (9th Cir. 2013), and the time spent is not excessive in light of the scope of the motion Narrative 82.8 13.4 117 - 20 - 15cv2287

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