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NOT FOR CITATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES ex rel DONNA M. 

McLEAN and THE STATE OF 

CALIFORNIA ex rel DONNA M. 

McLEAN,

Plaintiffs,

v.

THE COUNTY OF SANTA CLARA, THE 

DEPARTMENT OF FAMILY AND 

CHILDREN’S SERVICES OF SANTA 

CLARA COUNTY, KENNETH BORELLI, 

LAWRENCE GALLEGOS, EPIFANIO 

(“J.R.”) REYNA, TANYA BEYERS, DR. 

DEE SCHAFFER, DR. TOMMIJEAN 

THOMAS, DR. RICHARD PERILLO and 

DOES 1-100

Defendants.

Case No. 5:05-cv-01962 HRL

ORDER GRANTING IN PART AND

DENYING IN PART RELATOR’S 

MOTION FOR FEES

[Re: Dkt. No. 392]

Relator Donna McLean filed this qui tam action under the federal False Claims Act (31 

U.S.C. § 3729, et seq.) and the California False Claims Act (Govt. Code § 12651, et seq.). 

Defendants filed counterclaims asserting that, by filing the instant action, McLean breached the 

parties’ 2004 settlement agreement resolving several prior lawsuits filed by McLean against the 

County of Santa Clara. Several years after this action was filed, the claims brought on behalf of 

the State of California were voluntarily dismissed. McLean eventually obtained summary 

judgment on defendants’ counterclaims.

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Shortly after, relator moved for an award of $25,468.35 in fees and costs she said she 

incurred in litigating the counterclaims. That motion was based on a clause in the parties’ 2004 

settlement agreement that provides, in relevant part:

In any action or proceeding arising out of or relating to this 

Agreement or the enforcement or interpretation of this Agreement, 

the prevailing party shall recover reasonable attorneys’ fees, costs, 

and expenses incurred in connection with such action or proceeding.

(Dresser Declaration, Dkt. No. 163, Ex. E, ¶ 17). McLean also filed a motion for certification of 

final judgment as to the counterclaims. The court did not find sufficient justification for an 

immediate appeal as to the ruling on the counterclaims. Accordingly, relator’s motion for 

certification of final judgment was denied, and her then-pending motion for fees was denied 

without prejudice. (Dkt. No. 244). Meanwhile, the parties proceeded with litigation on the qui 

tam claims, and defendants ultimately prevailed on summary judgment as to those claims.

McLean subsequently renewed her motion for attorney’s fees. In it, she seeks an award of 

attorneys’ fees for services rendered by two of her former attorneys: Douglas Linde and William 

Dresser. Although Dresser is no longer counsel of record, this court is told that McLean has 

authorized him to make a “special appearance in this case for the limited purpose of moving for 

and recovering his attorneys’ fees for time expended on the counterclaim.” (Dkt. No. 393-3, 

Friedman Decl. ¶2). Dresser has also filed the motion on behalf of Linde. This time, however, 

Dresser seeks $29,093.35, a sum which includes fees and costs he says he incurred in connection 

with this renewed fees motion, as well as for services he did not claim in the first fees motion.

Defendants do not dispute that McLean prevailed on the counterclaims. Nor do they 

contest McLean’s assertion that she is entitled to recover fees under the parties’ 2004 settlement 

agreement. Instead, the focus of their opposition is that McLean seeks recovery of fees for work 

that defendants say was unnecessary or that pertained to the qui tam claims. Additionally, 

defendants contend that McLean has not submitted sufficient documentation to support the 

amount of fees claimed. Accordingly, defendants request that the fees motion be denied in its 

entirety—or, alternatively, that any award be limited to no more than $3,383.40.

This court directed Dresser to submit his unredacted billing statements for an in camera

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review. Upon submission of those papers, the matter was deemed suitable for determination 

without oral argument. Civ. L.R. 7-1(b). Having considered the moving and responding papers, 

this court grants the motion in part and denies it in part.

DISCUSSION

A. Costs

Although the parties’ 2004 settlement agreement permits recovery of costs, McLean has, in 

a separate filing, disclaimed any intent to request an award of costs. (Dkt. No. 406 at 3 n.1). 

Accordingly, the following costs will be deducted from the requested award:

• $234.60 in costs sought by Linde

• $426.20 sought by Dresser for McLean’s deposition transcript (Dkt. No. 163-4)

• $733.50 sought by Dresser for the deposition transcripts of defendants Byers 

and Griffith (Dkt. No. 163-3, p. 17);1 and

• $427.80 sought by Dresser for copying costs (Dkt. 163-3, p 18).

The total costs deducted are $1,822.10.

B. Reasonableness of Rates Charged

Whether calculating attorney’s fees under California or federal law, courts follow the 

lodestar approach. “The most useful starting point for determining the amount of a reasonable fee 

is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly 

rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L.Ed.2d 40 (1983), abrogated 

on other grounds by Tex. State Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 

S.Ct. 1486, 103 L.Ed.2d 866 (1989). The party seeking an award of fees should submit evidence 

supporting the hours worked and rates claimed. Id.

“In determining a reasonable hourly rate, the district court should be guided by the rate 

prevailing in the community for similar work performed by attorneys of comparable skill, 

experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 

 1 Additionally, defendants point out that these transcripts concern depositions taken by another 

one of relator’s former attorneys, Michael Millen, and that neither witness was asked during those 

examinations about defendants’ counterclaims. (Dkt. No. 211, Kiniyalocts Affidavit ¶ 4).

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1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing Blum v. 

Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541, 79 L.Ed.2d 891 (1984)). “Generally, the 

relevant community is the forum in which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 

500 (9th Cir. 1997) (citing Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991)). The fee 

applicant has the burden of producing evidence—other than declarations of interested counsel—

that the requested rates are in line with those prevailing in the community for similar services by 

lawyers of reasonably comparable skill, experience and reputation. Blum, 465 U.S. at 896 n.11. 

“The party opposing the fee application has a burden of rebuttal that requires submission of 

evidence to the district court challenging the accuracy and reasonableness of the hours charged or 

the facts asserted by the prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 

F.2d 1392, 1397-98 (9th Cir. 1993). In determining a reasonable fee, the court may take into 

account: (1) the novelty and complexity of the issues; (2) the special skill and experience of 

counsel; (3) the quality of representation; and (4) the results obtained. Chalmers, 796 F.2d at 

1212.

The fees McLean seeks are based on the following hourly rates: Linde ($425/hour), 

Dresser ($250/hour), attorney Richard Swenson ($250/hour), and paralegal/law clerk work 

($70/hour and $75/hour).2 McLean has not provided any evidence other than declarations of the 

interested attorneys as to the reasonableness of the rates charged. At the same time, however, 

defendants do not take issue with the hourly rates charged by Dresser and Swenson or their

paralegals/law clerks. Additionally, this court is familiar with the range of rates customarily 

charged by attorneys practicing before it, and the stated hourly rates for Dresser, Swenson, and 

their law clerks/paralegals appear to be within the middle range for cases of this magnitude and 

complexity and for similar work performed by attorneys of comparable skill, experience, and 

reputation.

Defendants do, however, challenge the hourly rate charged by Linde, who practices in 

 2 Defendants correctly note that Dresser’s fee agreement says that the hourly rate for 

paralegals/law clerks was $70, but that paralegal/law clerk work was sometimes charged at $75 

per hour. The fee agreement, however, also says that the stated rates were subject to change. 

(Dresser Decl., Ex. B, Dkt. 163-2 at 2).

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Beverly Hills, California. They contend that his hourly rate should be limited to $250/hour. As 

noted above, the relevant community for determining a reasonable hourly rate is the forum in 

which the district court sits. Barjon, 132 F.3d at 500. Rates outside the relevant forum “may be 

used ‘if local counsel was unavailable, either because they are unwilling or unable to perform 

because they lack the degree of experience, expertise, or specialization required to handle properly 

the case.’” Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)). There is no 

suggestion in the record that McLean hired Linde because qualified local counsel was unavailable 

here (and, indeed, all of her subsequent counsel are located in the Northern District of California). 

And, during the time period in question, Linde had been practicing for about five years, whereas 

Dresser had been in practice for over twenty. Accordingly, Linde’s hourly rate will be reduced to 

$250/hour.

C. Reasonableness of Hours

“The product of reasonable hours times a reasonable rate does not end the inquiry.” 

Hensley, 461 U.S. at 434. In determining a reasonable number of hours, the court must review 

detailed time records to determine whether the hours claimed by the applicant are adequately 

documented and whether any of the hours were unnecessary, duplicative or excessive. Chalmers, 

796 F.2d at 1210. “Where the documentation of hours is inadequate, the district court may reduce 

the award accordingly.” Hensley, 461 U.S. at 433. “There is no precise rule or formula for 

making these determinations.” Id. at 436. “The court necessarily has discretion in making this 

equitable judgment.” Id. at 437. The court may attempt to identify specific hours that should be 

eliminated, or it may simply reduce the award to account for the degree of success obtained. Id. at 

436-37. “Although the district court’s calculation of an award need not be done with precision, 

some indication of how it arrived at its figures and the amount of the award is necessary.” 

Chalmers, 796 F.2d at 1211.

1. Douglas Linde

McLean seeks fees for 31.25 hours that Linde spent defending against the counterclaim, 

including propounding written discovery requests; analyzing the case files; and researching, 

drafting, and arguing an anti-SLAPP (strategic lawsuit against public participation) motion.

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Defendants renew their motion to strike Linde’s time sheets on the ground that they are not 

properly authenticated. On McLean’s first motion for fees, Linde’s time sheets were simply 

appended to the declaration signed by Dresser. Linde, however, later submitted a declaration 

authenticating his time sheets. And, at a subsequent motion hearing, the court denied defendants’ 

motion to strike as moot. (Dkt. No. 306 at 2-3). Accordingly, defendants’ renewed motion to 

strike Linde’s time sheets is also denied.

Having reviewed Linde’s time sheets, the court finds the hours claimed to be reasonable. 

Applying a rate of $250 per hour, a total of $7,812.50 will be awarded for services rendered by 

Linde.

2. Hours allegedly pertaining to the qui tam claims

Defendants argue that some of the fees sought were actually incurred in connection with 

prosecution of the qui tam claims, and not in defense against the counterclaim. McLean maintains 

that she seeks fees incurred only in connection with the counterclaim, albeit she acknowledges that 

in some instances there may have been some overlap in the time being claimed. Defendants 

challenge the claimed hours in five respects, discussed below.

a. Depositions of Relator, Tanya Byers, and Christian Griffith

Dresser seeks $1799.00 for 6.4 hours of attorney time and 2.2 hours of paralegal/law clerk 

time (at $70/hour) and 0.6 hours of paralegal/law clerk time (at $75/hour) spent preparing for, 

traveling to and from, and attending McLean’s deposition. (Dkt. No. 163-3, pp. 10-11). Based on 

the number of pages of deposition transcript devoted to the issue, defendants say that only 8% of 

the actual examination concerned the counterclaims (Dkt. No. 211, Kiniyalocts Decl. ¶ 5) and 

request that the claimed sums be reduced accordingly. Dresser does not deny that the vast 

majority of McLean’s deposition concerned the qui tam claims; but, he contends that time spent in 

deposition does not fairly account for preparation time. He does not say how much of his 

preparation time was devoted to the counterclaims. Because only a small proportion of the 

examinations concerned the counterclaims, the court will award fees for 2 of the 6 hours Dresser 

spent preparing for and attending the deposition, plus the claimed paralegal/law clerk time for a 

total of $699.00.

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b. Fact Discovery

Defendants take issue with $887.50 (3.1 hours of attorney time3 and 1.5 hours of 

paralegal/law clerk time (at $75/hour)) claimed for fact discovery activities such as propounding 

written discovery requests, meeting-and-conferring, and preparing a motion to compel and 

supplemental disclosures. (Dkt. No. 163-3, pp. 4, 13, 16). They contend that these activities 

pertained solely to the qui tam claims. Dresser maintains that the claimed sums pertain only to the 

counterclaims, even though there may be some overlap with the qui tam claims. It is unclear 

precisely what percentage of the claimed activities relate to the counterclaims, if at all. But, it 

appears that only 15% of the of the submitted meet-and-confer correspondence concerned the 

counterclaims. (Dkt. 163, Dresser Decl., Exs. F-H). The court will award 15% of the requested 

fees for a total of $133.13.

c. Expert Disclosures

Defendants challenge $622.50 (1.5 hours of attorney time and 3.3 hours of paralegal/law 

clerk time (at $75/hour)) claimed in connection with expert disclosures. (See Dkt. No. 163-3, pp. 

23-24). They contend that these activities pertain only to the qui tam claims. It is unclear 

precisely what percentage of the claimed activities relate to the counterclaims, if at all. But, the 

record indicates that the vast majority of expert disclosure and discovery pertained to the qui tam 

claims. (Dkt. 169-1, 173, 174). The only suggestion that some of McLean’s expert disclosure 

might have related to the counterclaims is the fact that she initially disclosed attorneys for the 

United States and the State of California as 5 of her 67 claimed experts. (Dkt. 169-1). Inasmuch 

as those disclosures comprised 7% of her total expert disclosures, the court will award 7% of the 

claimed fees, for a total of $43.58.

d. Mediation conference calls

Defendants oppose $300.00 (1.2 hours of attorney time) claimed for conference calls and 

correspondence concerning the scheduling of the parties’ mediation. (Dkt. No. 163-3, pp. 5-7). 

Defendants argue that the parties were obliged under the court’s ADR Local Rules to engage in 

 3 Defendants say that the attorney time being claimed is 3.8 hours. However, on the billing pages 

defendants cite, the court finds only 3.1 hours that are being claimed in connection with fact 

discovery matters.

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some form of ADR, whether or not the counterclaims were in the case. This court agrees. 

Accordingly, the requested fees for these activities are denied.

e. Attorney’s fees without a description of service

Because the time sheets submitted by Dresser’s office were heavily redacted, defendants 

contend that it is unclear whether certain services pertained to the qui tam claims or to the 

counterclaims. Specifically, defendants argue that $1,135.00 (3.7 hours of attorney time and 3 

hours of paralegal time) should be deducted from the claimed sums. This court having reviewed 

the unredacted time sheets in camera, it is satisfied that the claimed sums are appropriate. No 

deductions will be made here.

3. Fees on Fees

Defendants object to McLean’s request for “fees on fees,” i.e., the fees incurred in bringing 

her fees motions. The “fees on fees” include:

(1) $1,750.00 for time spent by Dresser and Swenson preparing the first fees motion, 

(7 hours at $250/hour) (Dkt. Nos. 162 and 163);

(2) $2,100.00 (8.4 hours at $250/hour) for services performed in 2008 which were not 

claimed in the first fees motion (Dkt. Nos. 393, Dresser Decl., ¶ 7, Ex. B); and

(3) $1,250.00 (5 hours at $250/hour) for activities in connection with the instant fees 

motion (Dkt. No. 393, Dresser Decl. ¶ 8).

In evaluating a request for “fees on fees,” a “district court does not abuse its discretion by 

applying the same percentage of merits fees ultimately recovered to determine the proper amount 

of the fees-on-fees award.” Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 909 (9th 

Cir. 1995). Because McLean is being awarded 58% of the merits fees she requested, the court will 

also award 58% of the requested fees-on-fees for a total of $2958.00. Even if the court did not 

apply the percentage method, it would find a reduction in the requested fees-on-fees appropriate. 

The instant motion is a largely recycled version of the first. Moreover, Dresser did not engage in 

reasonable meet-and-confer negotiations prior to filing these fee motions. He initially requested 

that the County pay $12,000 in fees, but refused County counsel’s reasonable request for 

documentation supporting the requested fees, and then proceeded with the instant motions.

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5:05-cv-01962-HRL Notice has been electronically mailed to:

Gordon Wayne Renneisen grenneisen@cornerlaw.com, amiclut@cornerlaw.com

Jeremy L. Friedman jlfried@comcast.net

Julia Ann Clayton julia.clayton@doj.ca.gov

Melissa R. Kiniyalocts melissa.kiniyalocts@cco.co.scl.ca.us, 

marylou.gonzales@cco.sccgov.org

Sara McLean sara.mclean@usdoj.gov

Sara Winslow sara.winslow@usdoj.gov, kathy.terry@usdoj.gov

Stephen H. Schmid stephen.schmid@cco.co.santa-clara.ca.us, 

marylou.gonzales@cco.sccgov.org

William C Dresser loofwcd@aol.com

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