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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LIMO HOSTING, et al.,

Plaintiffs,

v.

MIKHAIL FIKS, et al.,

Defendants.

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No. C 08-2474 BZ

ORDER PARTLY GRANTING

DEFENDANT’S MOTION FOR

ATTORNEYS’ FEES

Following a jury verdict against Limo Hosting, Inc. and

Oleg Gridnev (plaintiffs) on all their claims and in favor of

defendant and counterclaimant Mikhail Fiks (defendant) in the

amount of $41,000 against plaintiffs for cybersquatting and

Bane Act violations, defendant filed this motion seeking

attorneys’ fees of $125,548.42. 

Defendant first seeks fees for defending the copyright

claim. In the Ninth Circuit, “an award of attorney’s fees to

a prevailing defendant that furthers the underlying purposes

of the Copyright Act is reposed in the sound discretion of

district courts.” Entertainment Research Group, Inc. v.

Genesis Creative Group, Inc., 122 F.3d 1211, 1229 (9th Cir.

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1997) cert. denied, 523 U.S. 1021 (1998), quoting Fantasy,

Inc. v. Fogerty, 94 F.3d 553, 555 (9th Cir. 1996). The

factors to be considered in awarding attorneys’ fees to a

prevailing party in a copyright action include “(1) the degree

of success obtained; (2) frivolousness; (3) motivation; (4)

the objective unreasonableness of the losing party’s factual

and legal arguments; and (5) the need, in particular

circumstances, to advance considerations of compensation and

deference.” Id. at 1229. 

The jury found that plaintiffs did not have a valid

copyright. Defendant was very successful in this regard and

this factor favors the award of fees.

I do not find that plaintiffs’ action for copyright

infringement was frivolous. The jury’s verdict turned more on

plaintiffs’ failure to present competent evidence than it did

on any finding that the claim was baseless, meritless, or

instituted for a vexatious purpose. This factor weighs

against awarding fees.

I find that plaintiffs had a mixed motive in this case. 

On the one hand, Gridnev testified that he filed this action

because he felt that defendant had wrongfully copied his sales

pitch and website. On the other hand, Gridnev repeatedly

threatened defendant over the phone, which indicates that

plaintiffs’ motivation was to harass. I find that this factor

does not favor either party.

This copyright claim was not objectively unreasonable. 

At trial, Gridnev testified that he had copyrighted his sales

pitch and that he subsequently saw the same sales pitch wordCase 3:08-cv-02474-BZ Document 154 Filed 01/04/10 Page 2 of 7
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for-word on defendant’s website. Though Gridnev ultimately

did not convince the jury that he owned a valid copyright,

this speaks more to a failure to introduce evidence than to

the claim being objectively unreasonable. This favor weighs

against awarding fees. 

Finally, I do not find that an award is necessary to

further deter plaintiffs. There is no evidence that

plaintiffs have engaged in similar lawsuits. Plaintiffs lost

on all of their claims and now have a judgment against them

for violating the Bane Act. That judgment, in addition to an

award of attorneys’ fees under the Bane Act, will adequately

deter plaintiffs and compensate defendant. This factor weighs

against an award of fees. In sum, the factors do not weigh in

favor of an award under the Copyright Act. In addition, as

discussed below, Fiks failed to break out the time he spent in

defending the copyright claim.

Fiks also seeks fees for succeeding on his Bane Act

counterclaims. Under Section 52.1(h) of the California Civil

Code, a prevailing party in a Bane Act case may be awarded

attorneys’ fees, at the discretion of the trial court. Moran

v. Oso Valley Greenbelt Ass'n, 117 Cal.App.4th 1029, 1034

(2004). I find that defendant is entitled to attorneys’ fees

for prosecuting his Bane Act claims. The jury found that

plaintiffs’ actions were sufficiently egregious so as to

warrant punitive damages. Plaintiffs in their opposition do

not contend that defendant is not entitled to attorneys’ fees

for the Bane Act claim. Instead, they contend that the fee

request is unsubstantiated and unreasonable. This argument

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has some merit.

Under federal and state law, a party seeking fees “bears

the burden of establishing entitlement to an award and

documenting the appropriate hours expended and hourly rates.” 

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A litigant

who did not succeed on all claims should produce records

sufficient to provide the court with “‘a proper basis for

determining how much time was spent on particular claims’”. 

Id. at 437, fn. 12. The Court may properly reduce

compensation on account of any failure to maintain appropriate

time records. Id. at 438, fn. 13; accord, ComputerXpress,

Inc. v. Jackson, 93 Cal.App.4th 993, 1020 (2001).

Here, the Court’s ability to rule on his motion is

obstructed by Fiks’ failure to allocate the fees he seeks

between his defense of the copyright claim; his defense of

plaintiffs’ other claims for which defendant has no fee claim,

or is not asserting one; his prosecution of the Bane Act

counterclaim; his prosecution of the cybersquatting 

counterclaim for which he claims no fees and his prosecution

of the defamation counterclaim which he lost.

I have exercised my discretion under Hensley and its

progeny in the following manner: First I have eliminated all

hours claimed before December 11, 2008, the first date that

the counterclaims are mentioned in the billing records, on the

grounds that that time was devoted to defending the complaint. 

I have carefully reviewed each of the time entries after

December 11, 2008 and discounted all fees requested. For

entries where time could be attributed both to defending

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plaintiffs’ claims and prosecuting the counterclaims, I

awarded defendant one-third of the requested fees, after

deducting one half (or three-sixths) of the claimed time as

attributable to defending the complaint, and an additional

one-sixth as attributable to prosecuting the cybersquatting

claim, for which no fees were sought, and the defamation

claim, which Fiks lost. In my judgment, having presided over

this case for over a year, and having presided over the trial,

little time in addition to what was spent on the Bane Act

claim was spent on the prosecution of the defamation claim and

less time was spent on the cybersquatting claim than on the

Bane Act Claim. Following the same methodology, I awarded

Fiks two-thirds of all time which could be attributed only to

prosecuting the counterclaims. Where I could not tell from

the time records for which claims the work was performed,

entries such as drafting discovery, I awarded nothing, since

defendant has the burden of producing adequate records. In

addition, I chose not to award any fees for time spent in

preparing defendant’s motion to compel filed April 21, 2009,

since it was filed in violation of my prior Scheduling Order. 

See Docket No. 72.

A reasonable fee is “the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly

rate.” Hensley, 461 U.S. at 432; Serrano v. Priest, 20 Cal.3d

25, 48 (1977). The reasonableness of an hourly rate is

determined by examining the rates “prevailing in the community

for similar work.” See Margolin v. Regional Planning Com.,

134 Cal.App.3d 999, 1004-05 (1982). Inexplicably, defendant

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has not presented any evidence of prevailing rates in the

community. However, “when the trial court is informed of the

extent and nature of the services rendered, it may rely on its

own experience and knowledge in determining their reasonable

value.” See In re Marriage of Cueva, 86 Cal.App.3d 290, 300

(1978). Based on my experience with fees in this district,

including fees I have awarded, and my experience in presiding

over this case, I find that the already discounted rates

claimed by Fiks are reasonable. 

The balance of plaintiffs’ opposition argues that various

portions of the claimed fees are not recoverable. Defendant

may not recover for clerical and secretarial work that “should

be covered in hourly rates as normal overhead.” Keith v.

Volpe, 644 F.Supp. 1312, 1316 (C.D.Cal. 1986). However,

“reasonable attorneys' fees may include paralegal services.” 

Leuzinger v. County of Lake, 2009 WL 839056, *8 (N.D.Cal.

2009). To the extent it appears from the billing records that

timekeepers Sumeena Birdi, Adam Schneider and Julie Lockwood

performed what I would consider secretarial work, such as

routing and mailing documents, I eliminated such hours. 

However, some of Birdi and Lockwood’s time, such as drafting

and editing documents and conducting online research in

support of the counterclaim, is recoverable as paralegal work. 

Using this methodology I award defendant fees as follows:

Karl Kronenberger $ 5,236.00

Jeff Rosenfeld $ 13,435.00

Margarita Calpotura $ 7,890.00

Sumeena Birdi $ 929.00

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Julie Lockwood $ 2,239.00

TOTAL: $ 29,729.00

From this total, I deducted $1,882.92 in fees I had

awarded defendants as a sanction in my Final Pretrial Order,

and which was also claimed as part of this motion.

 I also award defendant one-third of the claimed

computer-based legal research charges incurred after December

11, 2008, for a total of $886.00. See Trustees of Const.

Industry and Laborers Health and Welfare Trust v. Redland Ins.

Co., 460 F.3d 1253, 1258-59 (9th Cir. 2006) (noting the

“growing circuit consensus” that computer-based legal research

fees may be recovered as attorneys’ fees). 

I find no need for argument and VACATE the hearing

scheduled for January 6, 2010. For the foregoing reasons, IT

IS HEREBY ORDERED that defendant’s Motion for Attorneys Fees

is GRANTED IN PART in the amount of $28,732.08.

Dated: January 4, 2010

 Bernard Zimmerman 

 United States Magistrate Judge

G:\BZALL\-BZCASES\LIMO HOSTING V. FIKS\FEE ORDER.wpd

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