Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERIC TALLAKSEN, Case No.: 25-cv-1073-W-DDL Plaintiff, 12 ORDER GRANTING IN PART v. 13 PLAINTIFF’S MOTION FOR ALEXANDER SMITH; ESTEBAN ATTORNEY’S FEES PURSUANT TO 14 HERNANDEZ, FED. R. CIV. P. 37(a)(5)(A) 15 Defendants. 16 17 I. 18 INTRODUCTION 19 On May 12, 2026, the Court ordered that the Attorney General’s Office must pay 20 Plaintiff’s reasonable expenses incurred in moving to compel Defendant Smith to answer 21 deposition questions pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). Dkt. No. 22 49. The Court now addresses what amount of expenses are reasonable. 23 II. 24 BACKGROUND 25 During Defendant Smith’s deposition, defense counsel objected 26 and instructed Defendant Smith not to answer multiple questions on the basis of attorney- 27 client privilege. In a single motion, Plaintiff (1) moved to compel Defendant Smith 28 to answer questions for which the privilege was improperly invoked and (2) moved to 1 compel the production of Memoranda of Direction (“MOD”). Dkt. No. 41. Plaintiff also 2 sought sanctions against both Defendant Smith and defense counsel under Federal Rule of 3 Civil Procedure 37. Id. 4 The Court granted both of Plaintiff’s motions to compel. Dkt. No. 46. The Court 5 found that Defendant’s withholding of the MODs was substantially justified and therefore 6 not subject to fee-shifting under Rule 37(a)(5)(A). Dkt. No. 49 at 3. However, 7 the Court found that Defendant Smith had not established that his refusal to answer 8 deposition questions on privilege grounds was substantially justified. Id. at 9 4. Accordingly, Rule 37(a)(5)(A) required payment of Plaintiff’s reasonable expenses in 10 bringing the motion to compel as related to Defendant Smith’s privilege invocations. Id. 11 The Court determined that the Attorney General’s Office should be responsible for the 12 payment rather than individual defense counsel or Defendant Smith. Id. at 5. The Court 13 instructed Plaintiff to file a declaration setting forth the attorney’s fees and costs incurred 14 in bringing the motion to compel answers to deposition questions, but not the motion to 15 compel production of the MODs. Id. 16 Plaintiff subsequently filed a Motion for Attorney’s Fees requesting $29,137 17 for 31.5 hours of work at an hourly rate of $925. Dkt. No. 50. Plaintiff’s motion includes 18 declarations from Plaintiff’s counsel; Barrett S. Litt, a civil rights attorney and attorney’s 19 fees expert; Julia Yoo, a civil rights attorney; and Grace Jun, a civil rights 20 attorney. Id. Plaintiff also filed a table providing an hourly breakdown of the time spent 21 by Plaintiff’s counsel on the motion to compel.1 Dkt. No. 53. For billing entries reflecting 22 work done on both the MOD and privilege issue, Plaintiff discounted the time spent by at 23 least fifty percent. Id. at 5. 24 25 26 1 Plaintiff’s counsel’s hourly breakdown table was omitted from Plaintiff’s Motion for 27 Attorneys’ Fees. After Defendant pointed out the omission [Dkt. No. 51], Plaintiff promptly filed the table. Dkt. No. 53. Defendant then filed a supplemental response. Dkt. 28 1 Defendants argue that the Court should decline to award fees for 10.25 hours of 2 attorney time: 0.75 hours for the initial deposition and meet and confer; 0.50 3 hours preparing for the second deposition on May 6, 2026; and 9.00 hours calling a fee 4 expert and drafting the fee motion. Dkt. No. 54 at 2. Additionally, Defendants argue that 5 no more than half of Plaintiff’s claimed hours are reasonable based on Plaintiff’s counsel’s 6 experience and the nature of the work. Id. Defendants do not meaningfully challenge the 7 reasonableness of Plaintiff’s counsel’s $925 hourly rate. Id. 8 III. 9 LEGAL STANDARDS 10 When a motion to compel is granted, “the court must, after giving an opportunity to 11 be heard, require the party or deponent whose conduct necessitated the motion, the party 12 or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred 13 in making the motion, including attorney’s fees,” unless the movant failed to make a good 14 faith effort to obtain the discovery before filing the motion, the opposing party’s objection 15 was substantially justified, or other circumstances make an award of expenses unjust. Fed. 16 R. Civ. P. 37(a)(5)(A). The Court has already found that Defendant Smith’s invocation of 17 the attorney-client privilege was not substantially justified and that the Attorney General’s 18 Office must pay Plaintiff’s reasonable expenses incurred in moving to compel Defendant 19 Smith to answer deposition questions. Dkt. No. 49. The only issue before the Court now 20 is whether Plaintiff’s requested fees are reasonable. 21 Reasonable attorney’s fees are determined using the lodestar method. Camacho v. 22 Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008).2 “The lodestar is calculated by 23 multiplying the number of hours the prevailing party reasonably expended on the 24 litigation by a reasonable hourly rate.” Id. “The district court has a great deal of discretion 25 26 27 2 All citations, subsequent history, and parallel reporter citations are omitted unless otherwise noted. In direct quotes, all internal quotation marks, brackets, ellipses and 28 1 in determining the reasonableness of the fee.” Gates v. Deukmejian, 987 F.2d 1392, 1398 2 (9th Cir. 1992). 3 “A party seeking an award of fees should submit evidence supporting the hours 4 worked,” which a court may reduce if it finds that any hours were not “reasonably 5 expended.” Rothrock v. Int’l Ass’n of Heat & Frost Insulators & Allied Workers, No. 15- 6 CV-2412 DMS (JLB), 2016 WL 6395092, at *4 (S.D. Cal. Oct. 27, 2016); Hensley 7 v. Eckerhart, 461 U.S. 424, 434 (1983). Courts should exclude from the lodestar 8 calculation hours that are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 9 U.S. at 434. 10 A reasonable hourly rate is based on “the prevailing market rates in the relevant 11 community…taking into consideration the experience, skill, and reputation of the 12 attorney.” Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005). “[W]hen determining a 13 reasonable hourly rate, the relevant community is the forum in which the district court 14 sits.” Camacho, 523 F.3d at 979. Rates outside of the forum district are to be used only if 15 local counsel was unavailable. Id. “The burden is on the fee applicant to produce 16 satisfactory evidence—in addition to the attorney’s own affidavits—that the requested 17 rates are in line with those prevailing in the community for similar services by lawyers of 18 reasonably comparable skill, experience and reputation.” Dang, 422 F.3d at 814. “Once 19 the moving party presents this evidence, the nonmoving party has the burden of rebuttal, 20 which requires the submission of evidence challenging the accuracy and reasonableness of 21 the facts asserted by the moving party in its submitted affidavits.” Rothrock, 2016 22 WL 6395092 at *3. 23 IV. 24 DISCUSSION 25 Following the lodestar method, the Court turns first to the reasonable hourly rate, 26 then to the reasonable number of hours expended. 27 / / / 28 / / / 1 A. Reasonable Hourly Rate 2 Plaintiff has the burden of producing sufficient evidence that the requested hourly 3 rate of $925 is “in line with those prevailing in the community,” here being the Southern 4 District of California, “for similar services by lawyers of reasonably comparable skill, 5 experience, and reputation.” Dang, 422 F.3d at 813. “Affidavits of the plaintiffs’ 6 attorney[s] and other attorneys regarding prevailing fees in the community, and rate 7 determinations in other cases ... are satisfactory evidence of the prevailing market 8 rate.” Camacho, 523 F.3d at 980 (quoting United Steelworkers of Am. v. Phelps Dodge 9 Corp., 896 F. 2d 403, 407 (9th Cir. 1990)). When the Plaintiff does not produce sufficient 10 evidence in support of their fee request, “the Court may ‘rely on its own familiarity with 11 the legal market’ to determine the reasonable rates of counsel.” Stanz v. Brown, No. 22- 12 CV-01164-GPC-JLB, 2026 WL 1822988, at *3 (S.D. Cal. June 23, 2026) (quoting Ingram 13 v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011)). 14 Plaintiff’s counsel was a trial attorney with the Federal Defenders of San Diego for 15 twelve years before founding Stitt Vu Trial Lawyers APC in 2022. Dkt. No. 50-1 (“Stitt 16 Decl.”) at ¶ 4, 6. He has taken “dozens of cases to verdict and [has] obtained favorable 17 results for clients in trial and appellate courts,” and he was recognized by the San Diego 18 Federal Bar Association as the Most Outstanding Advocate in 2022. Id. at ¶ 5. Plaintiff’s 19 counsel’s reputation is bolstered by the declarations of attorneys Julia Yoo and Grace Jun, 20 who attest to his skill as a trial lawyer and advocate for his clients. See Dkt. Nos. 50-4, 50- 21 5. 22 Plaintiff’s counsel notes that he is retained for $925 an hour in a different civil rights 23 case in the Southern District (Stitt Decl. at ¶ 10), although the record does not indicate 24 whether the client in that case is actually paying that hourly rate. Plaintiff otherwise relies 25 primarily on the declaration of Barrett S. Litt, a civil rights attorney, who attests that $925 26 is “a very reasonable rate for attorneys of Mr. Stitt’s skill, reputation and expertise” and is 27 “well within the reasonable range of rates for attorneys of similar years of experience 28 litigating complex cases in the major urban centers of California.” Dkt. No. 50-2 (“Litt 1 Decl.”) at ¶ 31. In support, Mr. Litt cites over one hundred fee awards, but the vast 2 majority are from courts outside of the Southern District of California. Dkt. No. 50-3. The 3 Court is not persuaded by Mr. Litt’s argument that attorney hourly rates in Los Angeles 4 and the Bay Area should be utilized for this San Diego case. After all, “attorneys in the 5 San Diego community charge different [lower] rates than attorneys who practice in our 6 neighbor to the North.” Dunsmore v. San Diego Cnty. Sheriff's Dep’t, No. 20-CV-00406- 7 AJB-DDL, 2025 WL 2301940, at *5 (S.D. Cal. Aug. 8, 2025) (declining to adopt hourly 8 rates charged in San Francisco and Los Angeles because relevant forum was San Diego); 9 Erhart v. BofI Fed. Bank, No. 15-CV-02287-BAS-NLS, 2023 WL 6382460, at *14 (S.D. 10 Cal. Sept. 28, 2023) (court “assigned reduced weight” to declarations from “Los Angeles- 11 based litigators” and “a partner at a Washington, D.C. firm” in determining “the prevailing 12 rate in the San Diego community”). Moreover, rates outside the forum may be considered 13 only “if local counsel was unavailable,” and there is no such showing of unavailability 14 here. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). 15 Mr. Litt identifies only three fee awards from the Southern District of 16 California: Myles v. Cnty. of San Diego by & through San Diego Cnty. Sheriff's Dep't, No. 17 315CV01985JAHBLM, 2023 WL 6391481, at *4 (S.D. Cal. Sept. 29, 2023) (finding that 18 a rate of $900 per hour was reasonable for an attorney with fifteen years of 19 experience); Morey v. Louis Vuitton N. Am., Inc., No. 11CV1517 WQH BLM, 2014 WL 20 109194, at *10 (S.D. Cal. Jan. 9, 2014) (finding that a rate of $500 per hour was reasonable 21 for an attorney with seven years of experience); Johansson-Dohrmann v. Cbr Sys., Inc., 22 12-CV-1115-MMA BGS, 2013 WL 3864341 (S.D. Cal. July 24, 2013) (finding a rate of 23 $695 was reasonable for an attorney with twenty years of experience). Dkt. No. 50-3. Of 24 these three cases, only Myles supports Plaintiff’s counsel’s requested rate. 25 A more comprehensive examination of fee decisions in the Southern District shows 26 that $925 is a higher hourly rate than authorized in other cases for attorneys with similar 27 experience to Mr. Stitt. See, e.g., Adams v. Midland Credit Mgmt., Inc., No. 3:25-CV- 28 01205-JAH-DEB, 2026 WL 892826 (S.D. Cal. Mar. 30, 2026) (finding that $325 an hour 1 was a reasonable rate for a solo practitioner with fourteen years of experience); Fitzgerald 2 v. Pollard, No. 20CV848 JM(MSB), 2024 WL 4596401, at *11 (S.D. Cal. Oct. 28, 2024) 3 (in civil rights class action, approving hourly rates of $825 for partners with 35 and 31 4 years’ experience, $775 for senior associates with 22 and 19 years’ experience, and $525 5 for associate with 4 years’ experience as “within the range normally charged within this 6 legal community”); Soler v. Cnty. of San Diego, No. 14CV2470-MMA (RBB), 2021 WL 7 2515236 (S.D. Cal. June 18, 2021) (finding that $650 per hour was a reasonable rate for an 8 attorney with twenty-five years of experience); 3D Sys., Inc. v. Wynne, No. 21-CV-1141- 9 AGS-DDL, 2025 WL 51443 (S.D. Cal. Jan. 7, 2025) (in trade secrets misappropriation 10 action, finding $830 hourly rate for attorneys with 32 and 25 years’ experience and $685 11 hourly rate for attorney with 13 years’ experience were reasonable). Finally, neither party 12 cites the Real Rate Report, a national publication analyzing law firm rates that “has been 13 cited with approval by courts inside and outside this district.” Adams, 2026 WL 892826, 14 at *2 (citation omitted). According to the 2024 Real Rate Report, “the median rate for 15 litigation partners in San Diego is $400/hr.” Id. at *3. 16 The recent analysis in Dunsmore v. San Diego Cnty. Sheriff's Dep’t, No. 20-CV- 17 00406-AJB-DDL, 2025 WL 2301940 (S.D. Cal. Aug. 8, 2025), is particularly instructive. 18 Dunsmore is a complex civil rights class action challenging conditions of confinement in 19 the San Diego County jails. Dunsmore, 2025 WL 2301940, at *1. Plaintiffs and the County 20 of San Diego settled a cause of action alleging violations of the Americans With 21 Disabilities Act, and the court considered plaintiffs’ motion for interim attorneys’ fees 22 incurred in pursuing that claim. The court concluded that $900 was a reasonable hourly 23 rate for counsel with 19 years of experience and “expertise in disability access and 24 accommodations and prison litigation,” id. at *7-8, and that a $750.75 hourly rate was 25 reasonable for an attorney with 16 years of experience. Id. at * 8. 26 Considering all the foregoing information pertaining to the prevailing hourly rates 27 in the Southern District of California, the Court finds that $700 is a reasonable hourly rate 28 for an attorney of Mr. Stiff’s experience in this civil rights action. 1 B. Reasonable Hours Expended 2 Counsel is entitled to the “expenses incurred in making the motion.” Fed. R. Civ. P. 3 37(a)(5)(A). Plaintiff’s counsel “bears the burden of submitting detailed time records 4 justifying the hours claimed to have been expended.” Dunsmore, 2025 WL 2301940 at *9 5 (quoting Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)). The hours 6 claimed by Plaintiff’s counsel may be reduced by the Court if they are inadequately 7 documented, duplicative, excessive, or otherwise unnecessary. Id. 8 Plaintiff’s counsel provided a detailed chart setting forth the time spent on the 9 motion to compel, including the date and task description for each entry. Dkt. No. 53. For 10 time entries that reflected work done on both the motion to compel production of the MOD 11 and the motion to compel a further deposition of Defendant Smith, Plaintiff’s counsel 12 reduced the time billed by at least 50%. Dkt. No. 50. For example, on March 30, 2026, 13 Plaintiff’s counsel recorded ten hours spent on “draft[ing], edit[ing], and fil[ing] MTC with 14 supporting exhibits,” and includes only five of these hours in the fee calculation. Dkt. No. 15 53 at 1. Counsel similarly reduced the billing entries for raising the discovery dispute, 16 preparing for and attending Court hearings, calling opposing counsel, reviewing 17 Defendant’s response in opposition, preparing a reply, and preparing and taking the second 18 deposition of Defendant Smith. The Court finds this 50% reduction for combined entries 19 to be an appropriately conservative approach to approximate the hours spent on the 20 attorney-client privilege issue, especially considering it was the more complex issue of the 21 two and predominated both the pleadings and the hearings. 22 In total, Plaintiff’s counsel reports 31.5 hours for which he seeks fees. Dkt. No. 53. 23 This includes 13.45 hours spent researching and drafting the motion to compel; 3.95 hours 24 spent researching and drafting the reply; 2.35 hours spent preparing for and conducting the 25 second deposition of Defendant Smith; and 9.2 hours spent preparing the attorneys’ fees 26 motion. Id. The Court finds that the 13.45 hours spent on the motion and 3.95 hours spent 27 on the reply were reasonable. See Stanz v. Brown, No. 22-CV-01164-GPC-JLB, 2026 WL 28 1822988 (S.D. Cal. June 23, 2026) (finding that 22.9 hours spent on a motion to compel 1 were reasonable); compare Marrocco v. Hill, 291 F.R.D. 586 (D. Nev. 2 2013) (finding that spending 30.6 hours on a motion to compel was unreasonable, reducing 3 the lodestar to 15 hours). 4 The Court disagrees with Defendants’ position that the 0.75 hours billed for the 5 February 10, 2026 meet and confer regarding the privilege objections is improperly 6 included, as this meet and confer was the first necessary step in bringing the motion to 7 compel in accordance with the undersigned’s Chambers Rules. The Court also disagrees 8 with Defendants that Plaintiff’s counsel improperly billed 0.6 hours on May 4, 2026, and 9 0.5 hours on May 6, 2026 to prepare for the second deposition of Defendant Smith, as a 10 total preparation time of 1.1 hours spread over two days is reasonable. 11 However, the Court agrees with Defendant that the 9.2 hours spent on the attorneys’ 12 fees motion were not reasonable. In its May 12, 2026 Order, the Court requested only “a 13 declaration setting forth the attorney’s fees and costs incurred in bringing the motion to 14 compel answers to deposition questions.” Dkt. No. 49 at 5. Instead, Plaintiff’s counsel 15 retained a fee expert, sought declarations from multiple attorneys, and filed a motion of 16 over 180 pages, inclusive of exhibits, the majority of which was inconsequential to the 17 Court’s decision. See Cruz v. Nike Retail Servs., Inc., 346 F.R.D. 107, 117 (S.D. Cal. 2024) 18 (declining “to compensate plaintiff for the preparation of an exhibit book that was not 19 requested, and which proved almost totally unnecessary to resolving the issues in the Joint 20 Motion”). Preparing the declaration requested by the Court should have reasonably taken 21 no more than three hours. If Plaintiff determined that a more robust motion was necessary, 22 he should have moved for leave to submit such a motion rather than the single declaration 23 ordered by the Court. 24 The Court concludes that Plaintiff’s counsel reasonably spent 25.3 hours in 25 connection with the successful motion to compel. The lodestar figure (25.3 hours x 26 $700/hour) is $17,710.00. The Court finds this amount to be reasonable without the need 27 for further adjustment. 28 / / / I V. 2 CONCLUSION 3 For the foregoing reasons, Plaintiff's Motion for Attorneys’ Fees [Dkt. No. 50] is 4 ||GRANTED IN PART. The Attorney General’s Office must pay Plaintiff's counsel a total 5 ||of $17,710.00 within thirty days of the date of this Order. 6 IT IS SO ORDERED. 7 ||Dated: August 25, 2026 _—_— g Tb Lh a ° □□□□□□□□□□□□□□□□□□□□□□□□ 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28