1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SAN FRANCISCO BAYKEEPER, Lead Case No. 5:20-cv-00824-EJD Consolidated Case No. 5:20-cv-00826-EJD 9 Plaintiff,

ORDER AWARDING INTERIM FEES

10 v. AND COSTS

11 CITY OF SUNNYVALE, et al., Re: ECF No. 171 Defendants. 12

13 Plaintiff San Francisco Baykeeper moves for an award of interim attorneys’ fees and costs 14 under the Clean Water Act. Appl. for Interim Fees & Costs (“Fee Mot.”), ECF No. 171.1 Earlier, 15 the Court held that Baykeeper was a prevailing party entitled to interim fees but deferred 16 determining the amount of the fee award until after Baykeeper submitted its billing records for the 17 Court’s in camera review. Order Granting in Part Fee Mot. (“Prior Order”), ECF No. 207. 18 Having received and reviewed the relevant billing records, the Court finds that it is reasonable to 19 award 50% of Baykeeper’s requested fees, without prejudice to Baykeeper’s ability to seek the 20 remaining balance of its fees and costs upon full resolution of these consolidated cases. 21 I. LEGAL STANDARD 22 Under the Clean Water Act, an award of fees and costs must be “reasonable.” 33 U.S.C. 23 § 1365(d). To determine a reasonable interim fee award, courts apply a two-step process. First, 24 they perform a lodestar calculation, multiplying “the number of hours reasonably expended on the 25 litigation [] by a reasonable hourly rate.” S.F. Baykeeper v. W. Bay Sanitary Dist., No. 09-cv-5676 26

27 1 All record citations are to the lead docket. 1 EMC, 2011 WL 6012936, at *7 (N.D. Cal. Dec. 1, 2011) (quoting Hensley v. Eckerhart, 461 U.S. 2 424, 433 (1983)). From this initial lodestar calculation, courts “should exclude . . . hours that were 3 not ‘reasonably expended.’” Hensley, 461 U.S. at 434. Courts may also reduce the initial 4 calculation when “documentation of hours is inadequate.” Id. at 433. Second, once the courts 5 have come up with a final lodestar amount by making those adjustments, the courts must then 6 account for “the degree of success obtained” by the party requesting fees. W. Bay Sanitary Dist., 7 2011 WL 6012936, at *7 (citing Hensley, 461 U.S. at 440); see also Resurrection Bay 8 Conservation All. v. City of Seward, 640 F.3d 1087, 1095 (9th Cir. 2011) (internal quotation marks 9 omitted) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)) (“[T]he most critical factor in 10 determining the reasonableness of a fee award is the degree of success obtained.”). This means 11 that the courts should further reduce the fee award in relative proportion to the prevailing party’s 12 level of success. W. Bay Sanitary Dist., 2011 WL 6012936, at *12. 13 II. DISCUSSION 14 A. Lodestar Calculation 15 Baykeeper, via its in camera submission of billing records, calculates its lodestar fees at 16 $1,591,055.95 on 2,249 total hours of work. The Court reviews those billing records for the 17 reasonableness of Baykeeper’s billing rates and hours. 18 1. Reasonableness of Rates 19 To determine a reasonable hourly rate, courts are “guided by the rate prevailing in the 20 community for similar work performed by attorneys of comparable skill, experience, and 21 reputation.” Chalmers v. City of L.A., 796 F.2d 1205, 1210–11 (9th Cir. 1986), opinion amended 22 on denial of reh’g, 808 F.2d 1373 (9th Cir. 1987). The relevant community is “the forum in which 23 the district court sits”; in this case, the Northern District of California. Camacho v. Bridgeport 24 Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). 25 /// 26 /// 27 /// 1 Baykeeper proposes the following rates in this case: 2 Timekeeper Role Experience2 Hourly Rate 3 Jason Flanders Partner 18 years $855 4 Erica Maharg Partner 14 years $795 5 Kayla Karimi Associate 1 year $350 6 7 Esmeralda Bustos Paralegal > 10 years $300 8 Theresa Trillo Paralegal 1.5 years $250 9 Daniel Cooper Partner 32 years $975 10 Jesse Swanhuyser Partner 11 years $750 11 Jessica Hollinger Associate 1 year $350 12 Eric Buescher Managing Attorney 13 years $775 13 Nicole Sasaki Staff Attorney 9 years $675 14 Unpaid Law Clerks Law Clerk N/A $225 15 Admin Admin N/A $150 16 17 See Decl. of Christopher Sproul (“Sproul Decl.”) ¶¶ 17, 21, 25, 29, 33, 36, 38–39, 41–42, ECF No. 18 171-4; Decl. of Erica A. Maharg ¶¶ 53, 54, ECF No. 171-10; Decl. of Nicole Sasaki ¶ 25, ECF 19 No. 171-6. 20 Based on Baykeeper’s survey of hourly rates that have been awarded in the Northern 21 District of California in cases of comparable complexity and to attorneys of comparable 22 experience, Sproul Decl. (collecting hourly rate data), the Court finds that each of the attorneys’ 23 and paralegals’ hourly rates are reasonable. However, even assuming that unpaid law clerks’ time 24 is compensable under the Clean Water Act, the Court finds that it would not be reasonable to 25 award fess for that time when Baykeeper did not incur any costs for those law clerks’ work. See 26 27 2 Baykeeper is treating the associates on this matter as attorneys with one year of experience regardless of their actual experience. 1 Parsons v. Ryan, 949 F.3d 443, 467–68 (9th Cir. 2020). And because Baykeeper provides no 2 explanation for who “Admin” encompasses and why it billed time to “Admin” rather than a named 3 timekeeper, the Court finds that it would not be reasonable to award fees for work done by 4 “Admin” either. 5 2. Reasonableness of Hours 6 Based on the Court’s in camera review, the hours billed by Baykeeper’s attorneys appear 7 by and large to be reasonable.3 However, the Court identified various discrepancies that, while not 8 significantly impacting the total lodestar calculation, suggest that in the future, should Baykeeper 9 seek a final fee award, adversarial scrutiny of Baykeeper’s billing records by Defendants would be 10 helpful to the Court’s decision. For example, the Court observed that there were several time 11 entries across Baykeeper’s billing records with the exact same date, timekeeper, description, and 12 hours. Although it is possible that some timekeepers happened to separate the same task into two 13 entries (e.g., recording time spent on drafting a brief before and after a lunch break as separate 14 time entries) and coincidentally happened to spend the same amount of time on the activities in 15 both entries, the fact that there were so many identical entries implies that there may have been 16 some bug with the timekeeping system that Baykeeper’s attorneys used. Moreover, there were 17 several time entries with identical dates, timekeepers, and descriptions, but where hours differed 18 by exactly 0.1 hours. Again, once or twice might be a coincidence, but the Court observed this 19 pattern on multiple occasions, suggesting that there may be a larger issue with the timekeeping 20 system. 21 Baykeeper’s billing records also revealed that it spent almost $161,000 in pursuing this fee 22 motion, almost as much as Baykeeper spent in the pre-motion-to-dismiss phase of these 23 consolidated cases (about $169,000) and more than Baykeeper spent to defend its claims against 24 Defendants’ motion to dismiss (about $109,000). The Court finds that it was unreasonable for 25

26 3 Fees for Baykeeper’s in-house counsel are largely reasonable because Baykeeper’s in-house 27 attorneys were mostly performing active litigation work rather than serving as client liaisons. See Milgard Tempering, Inc. v. Selas Corp. of Am., 761 F.2d 553, 558 (9th Cir. 1985). 1 Baykeeper to spend so much time on its fee motion given that the fee motion was separate from 2 the merits of its cases. 3 * * * 4 For the reasons above, the Court finds that some of Baykeeper’s rates and hours are not 5 reasonable, justifying a reduction of Baykeeper’s lodestar. Because, as the Court explains below, 6 the Court also reduces the fee award to account for Baykeeper’s limited success, and the 7 reasonableness reductions identified in this section are small relative to the success reductions, the 8 Court incorporates these reasonableness reductions into the success reductions. 9 B. Degree of Success 10 With these consolidated cases, Baykeeper seeks to hold Defendants responsible for alleged 11 violations of water quality permits related to Defendants’ storm sewer systems. Second Am. 12 Compl. Against City of Sunnyvale (“Sunnyvale SAC”), ECF No. 140; Second Am. Compl. 13 Against City of Mountain View (“Mountain View SAC”), ECF No. 141. As relief, Baykeeper 14 asks for a declaration that Defendants violated the relevant water quality permits over the course 15 of several years, an injunction against future permit violations, and civil penalties for specific days 16 of violations. Sunnyvale SAC, Relief Requested; Mountain View SAC, Relief Requested. 17 Although Baykeeper has prevailed in showing violations, it has only done so for three 18 discrete days, Order Granting Plfs.’ Mot. For Partial Summ. J. 35, ECF No. 139, far less than for 19 the multiyear period that Baykeeper seeks relief for. And while Baykeeper has also established its 20 standing to sue in these cases, a prerequisite for seeking further relief, id. at 17, standing on its 21 own does not entitle Baykeeper to any remedies. Given Baykeeper’s modest success relative to 22 the goals of this litigation, and the issues with the reasonableness of rates and hours identified 23 above, the Court AWARDS 50% of Baykeeper’s requested interim fees. Such award is without 24 prejudice to Baykeeper’s ability to seek the balance of its fees in a final fee motion once these 25 cases are resolved, and it is also without prejudice to Defendants’ ability to further argue against 26 the reasonableness of Baykeeper’s fee request. 27 1 C. Costs 2 Baykeeper also seeks costs in the form of expert fees and other expenses. The Court finds 3 || it appropriate to AWARD $69,642.79 in litigation costs. However, Baykeeper failed to submit 4 || any billing records underlying its expert fee request, so the Court cannot determine whether 5 || Baykeeper’s proposed expert fees are reasonable. Therefore, the Court DENIES expert fees, 6 || without prejudice to Baykeeper’s ability to recover those fees at the end of these cases. Should 7 Baykeeper seek to do so, it must provide billing records documenting its expert’s time. 8 || I. CONCLUSION 9 For the reasons above, the Court AWARDS $795,527.98 in fees and $69,642.79 in costs.* 10 || This award is without prejudice to Baykeeper’s ability to seek the balance of its fees and costs in a 11 final fee award. For any future fee motion, though, Baykeeper must file its billing records under a 12 seal and provide copies to Defendants.

IT IS SO ORDERED.

v 14 || Dated: September 17, 2024 © 15 ae

EDWARD J. DAVILA

17 United States District Judge

18 19 20 21 22 23 * Defendants request that Plaintiffs post a bond, but the Court finds no statute or rule authorizing a bond as a condition for receiving attorneys’ fees. Defendants cite two cases, but neither supports 24 || their position that Baykeeper must post a bond to receive attorneys fees. In Ketab Corp. v. Mesriani Law Group, No. 14-cv-07241, 2016 WL 5921932 (C.D. Cal. Feb. 1, 2016), the court 5 required the party owing fees to post a bond before it could appeal the fee award. And in Nicodemus vy. Chrysler Corp.-Toledo Machining Plant, 445 F. Supp. 559 (N.D. Ohio 1977), while 26 || the court required the party receiving attorneys’ fees to post a bond, the court did not cite any statute or rule. Instead, the Nicodemus court cited only to Patterson v. American Tobacco Co., 27 No. 101-73-R, 1975 WL 136 (E.D. Va. Mar. 7, 1975), which in turn cited to no authority at all. So, the Court declines to impose a bond. 28 || Case No.: 5:20-cv-00824-EJD

ORDER AWARDING INTERIM FEES & COSTS