1 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. …classaction.kccllc.net/Documents/TLJ0001/TLJ_Plaintiff's Suppleme… · detailed time records. See Supplemental Declaration of

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Johnson v. Triple Leaf Tea Inc., Case No. 3:14-cv-01570

SUPP. MEM. OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES, COSTS AND

INCENTIVE AWARD

LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650)

[email protected]

SKYE RESENDES (SBN 278511)

[email protected]

ALEXIS M. WOOD (SBN 270200)

[email protected]

651 Arroyo Drive

San Diego, California 92103

Telephone: (619) 696-9006

Facsimile: (619) 546-6665

Class Counsel

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

EUNICE JOHNSON, individually, on behalf of

all others similarly situated, and the general

public,

Plaintiff,

v.

TRIPLE LEAF TEA INC.;

Defendant.

CASE NO.: 3:14-cv-01570 MMC

CLASS ACTION

SUPPLEMENTAL MEMORANDUM OF

POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S MOTION FOR ATTORNEY’S

FEES, COSTS AND INCENTIVE AWARD

PURSUANT TO DKT. NO. 57

[Filed concurrently with Supp. Decl. of Ronald A.

Marron & Decl. of Plaintiff Eunice Johnson]

(HEARING DATE SET BY ORDER GRANTING

PRELIMINARY APPROVAL OF CLASS ACTION

SETTLEMENT [DKT. NO. 53])

Judge: Hon. Maxine M. Chesney

Courtroom: 7 (19th Floor)

Date: Nov. 13, 2015

Time: 9:00 a.m.

Case3:14-cv-01570-MMC Document58 Filed09/08/15 Page1 of 19

mailto:[email protected]

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TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................................................... 1

II. CLASS COUNSEL’S LODESTAR CALCULATION IS REASONABLE ............................. 1

A. CLASS COUNSEL’S LODESTAR CALCULATION COMPORTS WITH BLUETOOTH .....3

1. Class Counsel Does Not Engage in “Block Billing” ............................................................. 4

2. Class Counsel Diligently Avoided Duplicate Entries and Excessive Charges ...................... 5

B. CALIFORNIA LAW GOVERNS THE CALCULATION OF PLAINTIFF’S FEE REQUEST 6

C. THE REQUESTED FEES ARE REASONABLE UNDER CALIFORNIA’S LODESTAR

TEST……………… .........................................................................................................................................7

1. The Hours Plaintiff’s Counsel Expended Are Reasonable .................................................... 8

2. Class Counsel’s Billing Rates Are Reasonable ...................................................................... 9

3. The Lodestar Method Is Proper in this Case Because Plaintiff Obtained Significant

Injunctive Relief on Behalf of the Class ................................................................................ 9

4. A Positive Multiplier Would Be Appropriate in this Case .................................................. 10

III. THE REQUESTED COSTS SHOULD BE AWARDED ....................................................... 11

IV. PLAINTIFF SHOULD RECEIVE A MODEST INCENTIVE AWARD ............................... 13

V. CONCLUSION ........................................................................................................................ 14


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TABLE OF AUTHORITIES

Cases

Blanchard v. Bergeron,

489 U.S. 87 (1989) ................................................................................................................................. 8

Blum v. Stenson,

465 U.S. 886 (1984) .......................................................................................................................... 8, 9

Chaudhry v. City of Los Angeles,

751 F.3d 1096 (9th Cir. 2014) .......................................................................................................... 7, 10

Chodos v. Borman,

227 Cal. App. 4th 76 (2014)................................................................................................................. 11

Gates v. Rowland,

39 F.3d 1439, (9th Cir. 1994) ................................................................................................................. 8

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ................................................................................................................ 9

Hensley v. Eckerhart,

461 U.S. 424 (1983) ............................................................................................................................... 7

In re Bluetooth Headset Products Litig.,

654 F.3d 935 (9th Cir. 2011) ...................................................................................................... 1, 3, 6, 7

In re Consumer Privacy Cases,

175 Cal. App. 4th 545 (2009)................................................................................................................. 9

In re Media Vision Tech. Sec. Litig.,

913 F. Supp. 1362 (N.D. Cal. 1996) .................................................................................................... 12

In re Tobacco II Cases,

46 Cal.4th 298 (2009) .......................................................................................................................... 10

Ketchum v. Moses,

24 Cal.4th 1122 (2001) .................................................................................................................... 9, 11

Lealao v. Beneficial California, Inc.,

82 Cal. App. 4th 19 (2000)............................................................................................................... 7, 10

Lilly v. Jamba Juice Co.,

No. 13-cv-02998-JST, 2015 WL 2062858 (N.D. Cal. May 4, 2015) .................................................... 7


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Lucas v. Kmart Corp.,

No. 99-cv-01923, 2006 WL 2729260 (D. Col. July 27, 2006) ............................................................ 10

Mangold v. California Pub. Utilities Com’n,

67 F.3d 1470 (9th Cir. 1995) .............................................................................................................. 6, 7

McEuen v. Riverview Bancorp., Inc.,

2014 WL 2197851 (W.D. Wash. May 27, 2014) ................................................................................... 6

Moreno v. City of Sacremento,

534 F.3d 1106 (9th Cir. 2008) ................................................................................................................ 5

Morris v. Affinity Health Plan, Inc.,

859 F. Supp. 2d 611 (S.D.N.Y. 2012) .................................................................................................. 12

PLCM Group, Inc. v. Drexler,

22 Cal.4th 1084 (2000) .......................................................................................................................... 8

Ramgen Power Systems LLC v. Agilis Engineering, Inc.,

No. 12-cv-1762-MJP, 2015 WL 362733 (W.D. Wash. Jan. 27, 2015) .................................................. 7

Relente v. Viator, Inc.,

No. 12-cv-05868-JD, 2015 WL 3613713 (N.D. Cal. Jun. 9, 2015) ................................................... 7, 9

Rodriguez v. Puerto Rico, 7

64 F. Supp. 2d 338 (D. Puerto Rico 2011) ............................................................................................. 5

Rodriguez v. W. Publ'g Corp.,

563 F.3d 948 (9th Cir. 2009) ................................................................................................................ 13

Sci. App. Int’l Corp. v. Super. Ct.,

39 Cal. App. 4th 1095 (1995)............................................................................................................... 12

Serrano v. Priest,

20 Cal. 3d 25 (1977) .............................................................................................................................. 7

Serrano v. Unruh, (Serrano IV), 3

2 Cal. 3d 621, 639 (1982)....................................................................................................................... 8

Townes v. City of New York,

No. 12-cv-3201, 2013 WL 153726 (E.D. N.Y. Jan. 15, 2013) .............................................................. 5

Vizcaino v. Microsoft Corporation,

290 F.3d. 1043 (9th Cir. 2002) ............................................................................................................... 7

Vo v. Las Virgenes Municipal Water Dist.,

79 Cal. App. 4th 440 (2000)................................................................................................................... 8


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Welch v. Met. Life Ins. Co.,

480 F.3d 942 (9th Cir. 2007) .................................................................................................................. 4

Yeager v. Bowlin,

Civ. No. 2:08–102 WBS JFM, 2010 WL 1689225 (E.D. Cal. Apr.26, 2010) ....................................... 4

Younger v. Michael & Associates, P.C.,

No. 13-cv-1679 YGR, 2014 WL 1760827 (N.D. Cal. April 30, 2014). ................................................ 4

Statutes

Cal. Civ. Code § 1780(e)........................................................................................................................ 6

Cal. Code Civ. P. § 1021.5 ............................................................................................................... 6, 11

Cal. Code Civ. P. § 1033.5 ................................................................................................................... 11

Rules

Fed. R. Civ. P. 54(d) ............................................................................................................................ 12


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I. INTRODUCTION

On August 15, 2015, Plaintiff Eunice Johnson filed a Motion for Attorney’s Fees, Costs, and

Incentive Award, which respectfully moved this Court for entry of an order granting Plaintiff an award

of attorneys’ fees to Class Counsel in the amount of $250,000, inclusive of costs of $3,272.22 for the

Law Offices of Ronald A. Marron. See Plaintiff’s Motion in Support of Attorney’s Fees, Costs, and an

Incentive Award (“Pl.’s Original Mot.”), Dkt. No. 54. Plaintiff also respectfully moved this Court for

entry of an order granting her a modest incentive award in the amount of $1,500 for her time and effort

in this litigation. Id. In support of Plaintiff’s Motion, Class Counsel submitted the Declaration of Ronald

A. Marron detailing Class Counsel’s total hours expended and the costs that Class Counsel incurred

during the course of this litigation. See Declaration of Ronald A. Marron in Support of Plaintiff’s

Motion for Attorney’s Fees, Costs, and an Incentive Award (“Original Marron Decl.”), Dkt. No. 54-1,

¶¶ 4-6.

On August 24, 2015, this Court issued an Order Affording Plaintiff Leave to Supplement Motion

for Attorney’s Fees, Costs and Incentive Award (Dkt. No. 57) directing Plaintiff to supplement her

motion by providing “adequate documentation” of Class Counsel’s hours expended on this case in order

to comport with the Ninth Circuit’s holding in In re Bluetooth Headset Products Litig., 654 F.3d 935,

941 (9th Cir. 2011). Pursuant to that Order Plaintiff has provided this Court with Class Counsel’s

detailed time records. See Supplemental Declaration of Ronald A. Marron attached hereto (“Supp.

Marron Decl.), ¶ 4 & Ex.1. Plaintiff has also provided this Court with detailed summaries of the time

expended on this litigation and the costs that Class Counsel has incurred. Supp. Marron Decl., ¶¶ 7-9.

As more fully explained herein, Plaintiff’s fee request is reasonable under California’s lodestar

test and is also in line with the Ninth Circuit’s holding in Bluetooth. Accordingly, Plaintiff respectfully

moves this court for an order granting her requested attorney’s fees, costs, and an incentive award.

II. CLASS COUNSEL’S LODESTAR CALCULATION IS REASONABLE

Class Counsel, the Law Offices of Ronald A. Marron, keeps contemporaneous records for each

timekeeper and regularly records time records in the normal course of business. Supp. Marron Decl., ¶

4. It is standard practice for the Law Offices of Ronald A. Marron to bill in one-tenth-of-an-hour


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increments for each task performed. Supp. Marron Decl., ¶ 4. During the course of this litigation, Class

Counsel kept time records consistent with that practice. Supp. Marron Decl., ¶ 4. Class Counsel has

provided this Court with detailed summaries of Class Counsel’s time records setting forth the nature of

the work Class Counsel performed during the course of this litigation and the hours spent on each task.

Supp. Marron Decl., ¶¶ 7-9. Class Counsel has also provided its detailed time sheets showing the time

spent on each task. Supp. Marron Decl., ¶ 4 & Ex. 1. Class Counsel’s total lodestar calculation is

$253,166.00. Supp. Marron Decl., ¶ 8. In sum, this lodestar is based on 436.8 hours of work as of

August 17, 2015 (417.8 attorney hours, 18.9 legal assistant/paralegal hours and .1 law clerk hours) plus

100 hours of post-application work (such as briefing this supplemental motion, briefing the final

approval motion, ensuring the Notice Administrator complies with the Prelim. Approval Order and the

final judgment, responding to objectors, if any, and appeals, if any), and is supported by fair and

reasonable rates and hours. Supp. Marron Decl., ¶ ¶ 4-6.

The summary chart provided below reflects that the hours spent on each category of time in this

case, as of August 17, 2015, was reasonable:

Pre-filing investigation and drafting CLRA letter: 10.9

Preparing Complaint: 14.2

Settlement negotiations and mediation: 117.7

Discovery and due diligence document review: 63.5

Client communications and case management: 61.6

Motions: 141.1

Preparing for and attending hearings: 27.8

Moreover, Class Counsel’s requested hourly rates are consistent with the prevailing market rates

in the Northern District of California. See Original Marron Decl., Dkt. No. 54-1, ¶¶ 7-23, Exs. 1-5

(highlighting Class Counsel’s qualifications and rates that have been approved in similar class action

lawsuits). A summary of the hours expended by each timekeeper and the requested rate for each time

keeper is provided below:


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Timekeeper Position Rate Requested Total

Hours Total Amount

Ron Marron Partner $745 49 $36,505.00

Skye Resendes Associate $475 170.9 $81,177.50

Alexis Wood Associate

$475 7 $3,325.00

Kas Gallucci Associate

$450 7 $3,150.00

William Richards Associate

$440 43.4 $19,096.00

Marshall Lurtz Associate $440

120.7 $53,108.00

Beth Goodman Associate $440

0.9 $396.00

Erin Minelli Associate $440

18.9 $8,316.00

Danielle Eisner Law Clerk/

Patent

Agent with

Clinical

Science

Background

$290

.1 $29.00

Support Staff Paralegals/

Legal

Assistants

$215 18.9 $4,064.00

Subtotal = $209,166.00

Post-Application Hours (Est.): 100 hours x $440 = $44,000.00

TOTAL = $253,166.00

A. CLASS COUNSEL’S LODESTAR CALCULATION COMPORTS WITH BLUETOOTH

In Bluetooth, the Ninth Circuit reversed a district court’s order awarding attorney’s fees

noting that the court “saw no need” to calculate the precise lodestar amount even though the district

court explicitly found “numerous defects in class counsel’s proposed computation of its $1.6 million

lodestar, including duplicate entries, excessive charges for most categories of services, a substantial

amount of block billing, and the use of an inflated hourly rate.” Bluetooth, 654 F.3d at 943-44. This


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Court should be satisfied that Class Counsel’s lodestar calculation does not suffer from the same

“defects” that were present in Bluetooth.

1. Class Counsel Does Not Engage in “Block Billing”

In recent years, courts have increasingly scrutinized the practice known as block billing,

which “is the time-keeping method by which each lawyer and legal assistant enters the total daily time

spent working on a case, rather than itemizing the time expended on specific tasks.” Welch v. Met. Life

Ins. Co., 480 F.3d 942, 945 n. 2 (9th Cir. 2007) (internal quotation marks omitted). The practice of block

billing “makes it more difficult to determine how much time was spent on particular activities.” Id. at

948. Additionally, “block billing hides accountability and may increase time by 10% to 30% by lumping

together tasks.” Yeager v. Bowlin, Civ. No. 2:08–102 WBS JFM, 2010 WL 1689225, at * 1 (E.D. Cal.

Apr.26, 2010) (citing The State Bar of California Committee on Mandatory Fee Arbitration, Arbitration

Advisory 03–01 (2003)) (internal quotation marks omitted). Accordingly, “the usage of block billing is

fundamentally inconsistent with the lodestar method.” Id.

Here, Class Counsel does not engage in block billing. Instead, Class Counsel itemizes their

time spent on each individual task. Supp. Marron Decl., ¶ 4. Moreover, Class Counsel bills each task at

the minimal one-tenth of an hour increment. Supp. Marron Decl., ¶ 4. As a court within this District

explained:

[T]o the extent that defendants suggest that plaintiff was unreasonable in billing time in

increments of a tenth of an hour (i.e., six minutes) for tasks that may not have taken the

full six minutes, the Court rejects the argument. Billing in such increments, or others, is a

standard practice. Further, as plaintiff points out[], regardless of the size of the fraction

that an attorney selects for billing, certain tasks will always trigger the minimum billable

amount, even if they do not fill the entire unit of time. Defendants fail to establish that the

tenth-of-an-hour standard is anything other than a common and reasonable measure.

Younger v. Michael & Associates, P.C., No. 13-cv-1679 YGR, 2014 WL 1760827, at *4 (N.D. Cal.

April 30, 2014). Similarly, in Barech v. City of Portland, the court noted that it “was not unreasonable

for [Plaintiff’s] attorney to bill for email exchanges in six-minute increments.” No. 3:14-cv-00328-AC,

2015 WL 920025, at *7 (D. Or. Mar. 3, 2015). The Court explained that this practice was reasonable

because “[i]nstead of billing fifteen minutes for each email and phone call, [Plaintiff’s] counsel billed

only six minutes. Some emails undoubtedly required less than six minutes to complete, but others


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assuredly took longer to research, draft, revise, and send.” Id; see also Townes v. City of New York, No.

12-cv-3201, 2013 WL 153726, at * 3 (E.D. N.Y. Jan. 15, 2013) (“[Plaintiff] was entitled to round up

and bill six minutes for each activity [including emails], whether it took two minutes or the actual six

minutes, pursuant to his billing practice of keeping time in one-tenth of an hour increments.”);

Rodriguez v. Puerto Rico, 764 F. Supp. 2d 338, 345 (D. Puerto Rico 2011) (“The Court agrees with

Plaintiffs’ statement that ‘no serious attorney can claim to be able to write and edit every email sent to a

client or other counsel in six minutes or less.’”).

Class Counsel in this case use email as their preferred method of communication. Supp.

Marron Decl., ¶ 11. Legal authorities and internal memoranda regarding research, case strategy, and

assignments are routinely distributed by the Marron Firm attorneys via email. Supp. Marron Decl., ¶ 11.

It is not uncommon for Class Counsel to spend a great deal of time drafting lengthy emails that are only

billed at the minimal one-tenth-of-an-hour rate. Supp. Marron Decl., ¶¶ 11-12. Moreover, many of the

emails mentioned in Class Counsel’s time sheets contained lengthy attachments or electronic voicemails

that are distributed via email through the Marron Firm’s electronic voicemail system. Supp. Marron

Decl., ¶ 11. Accordingly, this Court should find that Class Counsel’s use of six-minute increments is “a

common and reasonable measure.” Younger, 2014 WL 1760827, at *4.

2. Class Counsel Diligently Avoided Duplicate Entries and Excessive Charges

The Ninth Circuit has noted that “that lawyers are not likely to spend unnecessary time on

contingency fee cases in the hope of inflating their fees” and that, “[b]y and large, the court should defer

to the winning lawyer's professional judgment as to how much time he was required to spend on the

case; after all, he won, and might not have, had he been more of a slacker.” Moreno v. City of

Sacremento, 534 F.3d 1106, 1112 (9th Cir. 2008) (C.J. Kozinski). Class Counsel in this case made all

efforts to avoid spending unnecessary duplicative time on this case. Supp. Marron Decl., ¶ 13.

Moreover, Class Counsel exercised its professional judgment when staffing this case and assigning

projects to its attorneys and support staff. Supp. Marron Decl., ¶ 13. As the Moreno court explained:

The district court's inquiry must be limited to determining whether the fees requested by this

particular legal team are justified for the particular work performed and the results achieved

in this particular case. The court may permissibly look to the hourly rates charged by

comparable attorneys for similar work, but may not attempt to impose its own judgment


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regarding the best way to operate a law firm, nor to determine if different staffing decisions

might have led to different fee requests. The difficulty and skill level of the work performed,

and the result achieved—not whether it would have been cheaper to delegate the work to

other attorneys—must drive the district court's decision.

Moreno, 534 F.3d. at 1116; see also McEuen v. Riverview Bancorp., Inc., 2014 WL 2197851, at *5

(W.D. Wash. May 27, 2014) (“[Defendant] objects to the number of hours credited to interoffice

meetings and communications. []. This proposed reduction is rejected. The number of billing entries for

intra-office communications identified by [Defendant] do not appear excessive in light of the nature of

this case. Furthermore, collaborating with others and jointly formulating legal theories is an intrinsic

part of litigation success.”). Accordingly, this Court should find Plaintiff’s lodestar calculation to be

reasonable in light of Class Counsel’s cautious use of its billing discretion. Supp. Marron Decl., ¶ 13.

B. CALIFORNIA LAW GOVERNS THE CALCULATION OF PLAINTIFF’S FEE REQUEST

Plaintiff is requesting an award of attorney’s fees, costs and an incentive award pursuant to

the fee-shifting provisions of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §

1780(e), and California’s Private Attorney General Statute, Cal. Code Civ. Proc. § 1021.5.1

Accordingly, this court must apply California in determining both the right to fees and the method of

calculating fees. Mangold v. California Pub. Utilities Com’n, 67 F.3d 1470, 1478 (9th Cir. 1995)

(explaining that courts must follow state law when calculating fees pursuant to the Erie doctrine because

“the availability of a multiplier for fees in state court, but not in federal court, would likely lead to forum

shopping.”).

The Ninth Circuit’s opinion in Bluetooth should be interpreted carefully when it comes to

awarding attorney’s fees. In Bluetooth, the Ninth Circuit summarized federal authorities regarding

lodestar calculations. 654 F.3d at 9941-43. The Bluetooth court held that the district court abused its

discretion when it failed “to assure itself-and us- that the amount awarded was not unreasonably

excessive in light of the results achieved.” Id. at 943. However, the Bluetooth court never addressed the

issue of how the lower court should have calculated the lodestar pursuant to California law because the

1 Plaintiff is both the “prevailing” and “successful” party under the CLRA and the Private Attorney

General Statute and is entitled to fees under governing California law. See Pl.’s Original Mot., Dkt.

No. 54, at Section III.


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lower court never even made a lodestar calculation in the first place.2 Id. at 943. Instead, the Court

simply noted that a district court “abuses [its] discretion when it uses a mechanical or formulaic

approach that results in an unreasonable reward.” Id. at 945.

The Bluetooth court favorably cited the Ninth Circuit’s prior holding in Vizcaino v. Microsoft

Corporation, which provides more insight into how a district court should calculate class counsel’s

lodestar when state law provides the basis for awarding attorney’s fees. 290 F. 3d. 1043 (9th Cir. 2002).

The Vizcaino Court held that “Because Washington law governed the claim, it also governs the award of

fees.” Id. at 1047 (citing Mangold, 67 F.3d at 1478). In 2014— three years after its holding in

Bluetooth— the Ninth Circuit once again clarified that “when a plaintiff succeeds on both federal and

state claims that support a fee award, the state law [lodestar] multiplier is available.” Chaudhry v. City of

Los Angeles, 751 F.3d 1096, 1112 (9th Cir. 2014) (noting that “Unlike federal law, California law

allows for a multiplier of the lodestar to compensate for the risk of contingent litigation.”) Similarly

here, California law governs Plaintiff’s underlying claims and this Court must apply California law.

See, e.g., Relente v. Viator, Inc., No. 12-cv-05868-JD, 2015 WL 3613713, at *1 (N.D. Cal. Jun. 9, 2015)

(explaining that when a “plaintiff brings a state law claim, the Court looks to the state’s law in deciding

which method to use to calculate attorney’s fees.”); Lilly v. Jamba Juice Co., No. 13-cv-02998-JST,

2015 WL 2062858, at *5 (N.D. Cal. May 4, 2015); Ramgen Power Systems LLC v. Agilis Engineering,

Inc., No. 12-cv-1762-MJP, 2015 WL 362733, at *1 (W.D. Wash. Jan. 27, 2015).

C. THE REQUESTED FEES ARE REASONABLE UNDER CALIFORNIA’S LODESTAR

TEST

California’s version of the lodestar method starts by multiplying the time reasonably spent by

Class Counsel’s reasonable market hourly rate. See Serrano v. Priest, 20 Cal. 3d 25, 48-49 and n.23

(1977) (recognizing that “[t]he starting point of every fee award…must be a calculation of the attorney’s

services in terms of the time he has expended on the case.”); Lealao v. Beneficial California, Inc., 82

Cal. App. 4th 19, 26 (2000) (“the primary method for establishing the amount of ‘reasonable’ attorney

fees is the lodestar method.”). Accord, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“This

2 Bluetooth involved claims under various California and Illinois consumer protection statutes. Id. at

938 n. 2.


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calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s

services”) (emphasis added); see also Blum v. Stenson, 465 U.S. 886, 900 n. 16 (1984) (using “initial

estimate” language and noting, “[a]djustments to that [lodestar] fee then may be made as necessary in

the particular case”); Blanchard v. Bergeron, 489 U.S. 87, 94-95 (1989). It is well established that the

lodestar “approach anchors the trial court's analysis to an objective determination of the value of the

attorney’s services, ensuring that the amount awarded is not arbitrary.” PLCM Group, Inc. v. Drexler,

22 Cal.4th 1084, 1095 (2000). The lodestar test in this case amply supports a greater fee award than

Plaintiff is even requesting for the following reasons:

1. The Hours Plaintiff’s Counsel Expended Are Reasonable

Prevailing counsel are entitled to compensation for all hours “reasonably spent unless special

circumstances would render an award unjust.” Vo v. Las Virgenes Municipal Water Dist., 79 Cal. App.

4th 440, 446 (2000), citing Serrano v. Unruh, 32 Cal.3d 621, 639 (1982). Time is compensable if it was

reasonably expended and is the type of work that would be billed to a client. Id. at 434. Counsel’s time

records that are contemporaneously recorded establish Plaintiff’s prima facie entitlement to

compensation for the time recorded. See Gates v. Rowland, 39 F.3d 1439, 1449 (9th Cir. 1994); see also

Serrano v. Unruh, (Serrano IV), 32 Cal. 3d 621, 639 (1982) (“absent circumstances rendering the award

unjust, fees recoverable under § 1021.5 … ordinarily include compensation for all hours reasonably

spent, including those necessary to establish and defend the fee claim.”).

Class Counsel maintained detailed contemporaneous time records. Supp. Marron Decl., ¶ 4 & Ex.

1. This verified showing confirms that Plaintiff is seeking to recover for time spent on matters that are

routinely included in fee applications and billed to clients: investigation, communications about the case

with clients, opposing counsel, preparation and analysis of pleadings and motions, settlement

negotiations/mediation, obtaining approval of the proposed class action settlement, etc. Class Counsel

have exercised professional judgment in submitting their hours. Supp. Marron Decl., ¶ 13. Class

Counsel have also provided reasonable estimates of the time that they will spend up to any appeal. Supp.

Marron Decl., ¶ 6.


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2. Class Counsel’s Billing Rates Are Reasonable

The reasonable market value of the attorney's services is the measure of a reasonable hourly rate.

Ketchum v. Moses, 24 Cal.4th 1122, 1139 (2001). Hourly rates “are to be calculated according to the

prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. at 895; see also Serrano

IV, 32 Cal. 3d at 640-44. Class Counsel’s rates are reasonable because they are in line with hourly rates

charged by attorneys of comparable experience, reputation, and ability for similar litigation. See

Ketchum, 24 Cal. 4th at 1133. As fully detailed in Plaintiff’s original fee motion, numerous other courts

have awarded Class Counsel their fees at similar rates to those requested here. See Pl.’s Original Mot.,

Dkt. No. 54, Section V(A) at pp. 7-14; Original Marron Decl., Dkt. No. 54-1, ¶¶ 11-20.

3. The Lodestar Method Is Proper in this Case Because Plaintiff Obtained Significant

Injunctive Relief on Behalf of the Class

In Relente v. Viator, Inc., a court within this district noted that “the lodestar method has come in

for criticism, especially by federal courts. But California state courts have not abandoned the primacy of

the lodestar approach, although they have permitted courts to adjust the result of the lodestar calculation

based on other factors… Consequently, the Courts’ attorney’s fees analysis will use the lodestar

method.” 2015 WL 3613713, at *2. California case law has reaffirmed that “[w]hile the court has

discretion [to undertake the cross-check analysis] where appropriate, it is not required.” In re Consumer

Privacy Cases, 175 Cal. App. 4th 545, 557 (2009) (citation omitted). For example, the court in Thayer v.

Wells Fargo Bank, N.A., rejected the crosscheck and explained, “[f]irst of all, Lealao certainly does not

mandate that attorney fee awards calculated under the lodestar methodology must be measured by a

percentage-of-the-benefit yardstick whenever a class recovery can be monetized with a reasonable

degree of certainty. This judicial authority is fundamentally discretionary and is limited to cases in

which a lodestar award would not produce a fee that is within the range of fees freely negotiated in the

legal marketplace and “it is not otherwise inappropriate” to increase the basic lodestar. 92 Cal. App. 4th

819, 845-46 (2001) (citing Lealao, supra, at p. 49…); C.f. Hanlon v. Chrysler Corp., 150 F.3d 1011,

1029 (9th Cir. 1998) (holding under federal test: “[i]n employment, civil rights and other injunctive

relief class actions, courts often use a lodestar calculation because there is no way to gauge the net value

of the settlement or any percentage thereof.”).


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Here, the central relief of a permanent injunction is not as readily monetized. A cross-check in

this case would not appear feasible because Section 17203 makes injunctive relief ‘the primary form of

relief available under the UCL,’ while restitution is merely ‘ancillary.’” In re Tobacco II Cases 46

Cal.4th 298, 319 (2009). The value of the injunctive relief in this case cannot be ignored. See Pl.’s

Original Mot., Dkt. No. 54, Section VI (A), at pp. 14-17.

4. A Positive Multiplier Would Be Appropriate in this Case

Class Counsel’s lodestar calculation of $253,166.00 is already higher than the $250,000.00 in fees

that Plaintiff is requesting. Supp. Marron Decl., ¶ 8. Plaintiff recognizes that she cannot recover a

greater amount than $250,000. However, one thing is clear: the award should be no less than the

$250,000 given the permissive use of multipliers under the California lodestar test.

In Mangold, the Ninth Circuit held that a federal court reviewing a fee application in a case that

has California claims must apply California law in determining the right to a multiplier and is not

constrained by the federal lodestar method. 67 F.3d at 1478. Thus, as recognized by the Ninth Circuit in

Mangold, and by California courts in later attorneys’ fees decisions, California is not required to follow

federal law in interpreting its own fee-shifting statutes. Therefore, courts evaluating fee claims in cases

that have California claims – such as in this case – need not recognize, for example, the bar to

enhancement of lodestar fees on the basis of contingency risk. See Chaudhry, 751 F.3d at 1112; see also

Lealao, 82 Cal. App. at 43 (2000).

The California Supreme Court has identified a number of factors supporting a multiplier on fees

including the (i) novelty and difficulty of the issues in the case as well as the skill in presenting them;

(ii) the extent to which the case precluded the attorneys from taking on other work; and (iii) the

contingent nature of the fee award. Serrano, 20 Cal. 3d at 49; see also, Lealao, 82 Cal. App. at 40, n. 8,

42 (2000) (listing Serrano factors and noting that California “trial courts have considerably wider

latitude than their federal counterparts in the selection of factors that may be used to adjust the lodestar”

and recognizing that a court may consider whether an enhancement may be necessary to induce lawyers

to undertake expensive and risky litigation in order to further public policy or enforce the rights of

individuals in class or other types of representative suits.). Accord, Lucas v. Kmart Corp., No. 99-cv-

01923, 2006 WL 2729260, at *8 (D. Col. July 27, 2006) (“California has a ‘relatively permissive


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attitude on the use of multipliers.’”).

Additionally, the degree of success and the public impact of the result obtained should be

considered in determining enhancement of a fee award under CCP § 1021.5. Beasley v. Wells Fargo

Bank, 235 Cal. App. 3d 1407 at 1419-20 (1991);. This factor supports a positive multiplier because this

Settlement serves the public interest and benefits on an ongoing basis a substantial number of people.

Of the factors determining the application of multiplier under the California lodestar test the main

one is the attorney’s assumption of risk. “[T]he purpose of a fee enhancement is primarily to

compensate the attorney for the prevailing party at a rate reflecting the risk of nonpayment in

contingency cases as a class.” Ketchum, 24 Cal.4th at 1138 (italics added.). Accord, Chodos v. Borman,

227 Cal. App. 4th 76, 98 (2014) (“generally the rationale for applying a multiplier to a lodestar amount

is to compensate a skilled attorney who voluntarily assumes a contingent risk of nonpayment at the

outset of his or her representation of the client.”). Thus, “[o]ne of the most common fee enhancers …

[is] contingency risk.” Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 579-84 (2005) (enhancement

of fees for time spent to recover fees proper where fees sought under § 1021.5). As the Court in

Ketchum explained:

A contingent fee must be higher than a fee for the same legal services paid as they are

performed. The contingent fee compensates the lawyer not only for the legal services he

renders but for the loan of those services. The implicit interest rate on such a loan is higher

because the risk of default (the loss of the case, which cancels the debt of the client to the

lawyer) is much higher than that of conventional loans.

Ketchum, 24 Cal. 4th at 1132-1133(quotation omitted). The above does not even take into consideration

the possibility of no recovery. It takes hard and diligent work by skilled counsel to develop facts and

theories which will persuade defendants to enter into serious settlement negotiations. Class Counsel

undertook this representation with no assurance of any payment against a large company that is

represented by highly competent counsel. Under these circumstances, a positive multiplier in this case is

appropriate in the event that this Court determines that Class Counsel’s actual lodestar calculation is

below the requested $250,000 in fees.

III. THE REQUESTED COSTS SHOULD BE AWARDED

Under California Code of Civil Procedure §§ 1033.5 (a)(1), (3), (4), and (7), the Court must


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award costs for court fees; deposition costs for transcribing, recording and travel; service of process

fees; and witness fees. In addition, § 1033.5(c) provides discretion to award reimbursement of other

costs if they are “reasonably necessary to the conduct of the litigation, rather than merely convenient or

beneficial to its preparation.” Sci. App. Int’l Corp. v. Super. Ct., 39 Cal. App. 4th 1095, 1103 (1995). In

addition, “[t]he reimbursement of taxable expenses in federal litigation is governed by 28 U.S.C. § 1920

and Fed. R. Civ. P. 54.” In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362, 1365-66 (N.D. Cal.

1996). Rule 54(d) “entitles prevailing parties to collect taxable costs.” Id.; Morris v. Affinity Health

Plan, Inc., 859 F. Supp. 2d 611, 624 (S.D.N.Y. 2012) (noting that courts universally accept that

“telephone charges, postage, transportation, working meals, photocopies, and electronic research, are

reasonable and were incidental and necessary to the representation of the Class”) (emphasis added); Fed.

R. Civ. P. 54(d) (“Unless a federal statute, these rules, or a court order provides otherwise, costs—other

than attorney's fees—should be allowed to the prevailing party.”). Notably, Class Counsel negotiated for

Defendant to pay all the costs of private mediation, an exceptional result for the Class.

Class Counsel has incurred $715.71in statutorily recoverable costs, and $3,276.22 in costs

reasonably necessary to conduct this litigation, which were summarized in Appendix 2 to Plaintiff’s

original fee Motion (and again below). See Pl.’s Original Mot., Dkt. No. 54, at App. 2.

Expenses Recoverable Under Cal. Civ. Proc. Code § 1033.5:

Description Amount

Court Filings $400.00

Service of Process Fees $302.75

Certified mail postage to all Defendant and their agents

for statutory notice required by CLRA $12.96

Total: $715.71

Additional Expenses Reasonably Necessary to Prosecute Action

Description Amount

Mediation No charge to the Class

Postage Overhead – no charge

to the Class


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Description Amount

Flat rate charge for case deadline calculations

(CompuLaw Deadlines on Demand software) $ 160.00

Flights to out of county hearings $1,366.20

PACER Overhead – no charge

to the Class

Mileage and transportation $105.70

Lodging for out of county hearings $570.94

Photocopies $308.25

Westlaw online research Overhead – no charge

to the Class

Meals for out of county travel $19.42

Parking $30.00

Total: $2,560.51

GRAND TOTAL: $3,276.22

All of Counsel’s expenses are statutorily authorized, and reasonable and necessary for the

successful prosecution of this case. Accordingly, the Court should grant Class Counsel’s request for

$1,426.27 in costs. See Cal. Civ. Proc. Code § 1033.5; Fed. R. Civ. P. 54(d).

IV. PLAINTIFF SHOULD RECEIVE A MODEST INCENTIVE AWARD

“Incentive awards are fairly typical in class action cases. Such awards are discretionary, and are

intended to compensate class representatives for work done on behalf of the class, to make up for

financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their

willingness to act as a private attorney general.” Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 958-59

(9th Cir. 2009) (internal citations omitted). Here, Plaintiff Eunice Johnson respectfully requests a

modest service award of $1,500, in recognition of her contribution toward the successful prosecution of

this case. The requested award is in line with those approved in other injunctive relief only cases. See

Pl.’s Original Mot., Dkt. No. 54, Section VIII.


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Ms. Johnson has been actively involved in this litigation and pre-litigation investigation since

January 2014, which will be close to two years of participation by the time of the final approval hearing.

See Declaration of Plaintiff Eunice Johnson (“Johnson Decl.”) attached hereto, ¶ 2. Ms. Johnson decided

to serve as a class representative in this case because she purchased Triple Leaf’s Dieter’s Green tea,

believing it to be an herbal supplement for weight loss, and also believing Triple Leaf’s representations

that the Products would work as advertised. Johnson Decl., ¶ 6. Ms. Johnson has been a significant

participant in this action from its inception to settlement, including reviewing court filings; continuous

communications with Class Counsel throughout the litigation, including being on stand-by during

mediation of the action; reviewing and approving the Settlement; and being committed to secure

substantive relief on behalf of the Class. Johnson Decl., ¶¶ 2-4. After reviewing the terms of the

settlement, Ms. Johnson believes that the agreed upon labeling changes will help future consumers

understand the nature of Triple Leaf’s tea products, so that they can make an informed choice for

themselves and their families when purchasing the products. Johnson Decl., ¶ 7. Here, a modest service

award of $1,500 is proper in this case.

V. CONCLUSION

For all of the foregoing reasons, Plaintiff respectfully requests the Court grant the relief

requested.

Dated: September 8, 2015 Respectfully submitted,

/s/ Ronald A. Marron

RONALD A. MARRON

[email protected]

SKYE RESENDES

[email protected]

LAW OFFICES OF RONALD A. MARRON

651 Arroyo Drive

San Diego, California 92101

Telephone: (619) 696-9006

Facsimile: (619) 564-6665
