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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALEB AVERY T’BEAR,

Plaintiff,

v.

BARRY FORMAN,

Defendant.

Case No.17-cv-00796-JSC 

ORDER RE: DEFENDANT’S MOTION 

FOR ATTORNEYS’ FEES

Re: Dkt. No. 246

Plaintiff Caleb Avery t’Bear sued Defendant Barry Forman in California state court for 

breach of fiduciary duty, declaratory relief, and an accounting arising out of a failed business 

venture.

1

 (Dkt. No. 1-1.)2 Defendant removed the action to this Court pursuant to 28 U.S.C. §

1441(b), based on diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No. 1 at ¶ 4.) Defendant 

subsequently brought counterclaims for breach of loan agreements, rescission, and in the 

alternative, equitable relief. (Dkt. No. 84.) Following the parties’ cross motions for summary 

judgment, and a bench trial on the remaining counterclaim, the Court entered judgment in favor of 

Defendant and against Plaintiff on all claims and counterclaims. (Dkt. No. 240.) Now pending 

before the Court is Defendant’s motion for attorneys’ fees. (Dkt. No. 246.) After careful 

consideration of the parties’ briefing,3the Court GRANTS IN PART Defendant’s motion. 

BACKGROUND

I. Factual Background

The factual background of this case is set forth in detail in the Court’s February 2019 

1 Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §

636(c). (Dkt. Nos. 4 & 8.) 

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 

ECF-generated page numbers at the top of the documents. 

3 Pursuant to Civil Local Rule 7-1(b), the Court vacated the hearing scheduled for May 7, 2020. 

(Dkt. No. 254.) 

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Orders on the parties’ cross motions for summary judgment, (see Dkt. No. 142 at 2-11), and its 

Findings of Fact and Conclusions of Law Following Bench Trial, (see Dkt. No. 235 at 12-23). 

The Court incorporates that background here. 

II. Procedural History

The procedural history of this case is set forth in the Court’s Findings of Fact and 

Conclusions of Law Following Bench Trial, (see Dkt. No. 235 at 1-2). The Court incorporates 

that background here. On February 24, 2020, in connection with its Findings of Fact and 

Conclusions of Law and its February 2019 orders on the parties’ cross motions for summary 

judgment, (see Dkt. Nos. 142 & 148), the Court issued a Judgment in favor of Defendant and 

against Plaintiff as to all claims in this action; specifically: (1) all of Plaintiff’s claims against 

Defendant; (2) Defendant’s counterclaim against Plaintiff for breach of loan agreements

(“promissory notes”), awarding $1,410,895 in damages; and (3) Defendant’s counterclaim for 

rescission of the December 2011 Memorandum of Understanding (“MOU”), restoring Defendant’s 

direct security interest in the FairWay IP. (Dkt. No. 240.) Defendant filed the instant motion for

attorneys’ fees on March 24, 2020. (Dkt. No. 246.) The motion is fully briefed. (See Dkt. Nos. 

252 & 253). 

DISCUSSION

Pursuant to Federal Rule of Civil Procedure 54(d)(2), Northern District of California Local 

Rule 54-5, California Code of Civil Procedure § 1021, and California Civil Code § 1717, 

Defendant moves for attorneys’ fees as the prevailing party in this litigation, based on the 33 

promissory notes at issue in Defendant’s counterclaims—all but one of which contains a feeshifting provision entitling the prevailing party in litigation regarding enforcement of the loans to 

an award of reasonable attorneys’ fees.4 (Dkt. No. 246 at 6.) 

The Court must apply state law in adjudicating Defendant’s motion for attorneys’ fees 

because this a diversity action. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 

2002). There is no dispute that 30 of the 32 promissory notes containing the fee-shifting 

4 The loan between Defendant and FairWay International Kft, which is located in Hungary, does 

not include a fee shifting provision. (See Dkt. No. 99-2, Ex. 25 at 98.) 

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provisions are governed by California state law, and the other two are governed by Delaware state 

law. (See Dkt. No. 142 at 3.) There is likewise no dispute that both California state law and 

Delaware state law recognize the validity of reciprocal fee-shifting provisions. See, e.g., Scott Co. 

v. Blount, Inc., 20 Cal. 4th 1103, 1109 (1999) (“When a party obtains a simple, unqualified victory 

by completely prevailing on or defeating all contract claims in the action and the contract contains 

a provision for attorney fees, [Cal. Civ. Code § 1717(a)] entitles the successful party to recover 

reasonable attorney fees incurred in prosecution or defense of those claims.”); ATP Tour, Inc. v. 

Deutscher Tennis Bund, 91 A.3d 554, 558 (Del. 2014) (“[I]t is settled that contracting parties may 

agree to . . . obligate the losing party to pay the prevailing party’s fees.”). 

A choice-of-law analysis between California and Delaware law is unnecessary to resolve 

Defendant’s motion because (1) there is no dispute over which law applies and both parties apply 

California law, and (2) California and Delaware both recognize the validity of “prevailing party”

fee-shifting provisions. Thus, the Court applies California law because 30 of the 32 promissory 

notes containing the fee-shifting provisions are governed by California law and the analysis under 

either state’s law is not materially different. 

The validity of the fee-shifting provisions is not in dispute; indeed, Plaintiff takes “no issue 

with costs specifically associated with enforcement and collection of the loans.” (See Dkt. No. 

252 at 3.) Instead, Plaintiff opposes the requested award on the grounds that the amount sought is 

unreasonable because it encompasses attorney hours that were not specific to “the enforcement 

and collection of the loans.”

5

 (See id. at 4.) Given that Defendant’s entitlement to an award of 

attorneys’ fees as the prevailing party in this litigation is undisputed,6the Court addresses only the 

scope of the fee-shifting provisions and the reasonableness of the requested award. 

5 Plaintiff’s opposition contains arguments regarding the merits of Defendant’s rescission 

counterclaim and the validity of the Court’s Findings of Fact and Conclusions of Law. (See Dkt. 

No. 252 at 13-19.) Those issues are not before the Court. Plaintiff filed a Notice of Appeal with 

the Ninth Circuit on April 7, 2020 concerning the Court’s February 2019 Orders on the parties’ 

cross motions for summary judgment and related orders, and the Court’s Findings of Fact and 

Conclusions of Law. (Dkt. No. 249.) Thus, the Court addresses Plaintiff’s opposition only as it 

relates to Defendant’s request for attorneys’ fees. 

6 California Civil Code § 1717(b)(1) defines the “prevailing party” as the “party who recovered 

greater relief in the action on the contract.” As previously discussed, the Court entered judgment 

in favor of Defendant on all claims in this action. (Dkt. No. 240.) 

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I. Scope of Attorneys’ Fees Provisions

California Code of Civil Procedure § 1021 provides, in pertinent part: “Except as 

attorney’s fees are specifically provided for by statute, the measure and mode of compensation of 

attorneys and counselors at law is left to the agreement, express or implied, of the parties.” 

Pursuant to section 1021, “parties may validly agree that the prevailing party will be awarded 

attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort 

or in contract.” Palmer v. Shawback, 17 Cal. App. 4th 296, 299 (1993) (internal quotation marks 

and citation omitted). California Civil Code § 1717(a) specifically applies to actions “on a 

contract,” and provides, in pertinent part:

In any action on a contract, where the contract specifically provides 

that attorney’s fees and costs, which are incurred to enforce that 

contract, shall be awarded either to one of the parties or to the 

prevailing party, then the party who is determined to be the party 

prevailing on the contract, whether he or she is the party specified in 

the contract or not, shall be entitled to reasonable attorney's fees in 

addition to other costs.

“California courts liberally construe the term ‘on a contract’ as within section 1717.” 

Hjelm v. Prometheus Real Estate Grp., Inc., 3 Cal. App. 5th 1155, 1168 (2016) (internal quotation 

marks and citation omitted). “As long as the action ‘involves’ a contract it is ‘on the contract’ 

within the meaning of section 1717.” Id. (alterations, internal quotation marks, and citation 

omitted). As the court explained in Hjelm: 

An action (or cause of action) is ‘on a contract’ for purposes of section 

1717 if (1) the action (or cause of action) ‘involves’ an agreement, in 

the sense that the action (or cause of action) arises out of, is based

upon, or relates to an agreement by seeking to define or interpret its 

terms or to determine or enforce a party’s rights or duties under the 

agreement, and (2) the agreement contains an attorney fees clause.

Hjelm, 3 Cal. App. 5th at 1170 (internal quotation marks and citation omitted). Further, “[w]here 

an attorney fee clause provides for an award of fees incurred in enforcing the contract, the 

prevailing party is entitled to fees for any action ‘on the contract,’ whether incurred offensively or 

defensively.” Turner v. Schulz, 175 Cal. App. 974, 980 (2009). 

There is no dispute that Plaintiff drafted the promissory notes at issue and that all but one 

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includes a fee-shifting provision.7 The first two notes, for loans of $100,000 and $135,000 

respectively, provide, in pertinent part: 

Should any litigation be commenced between [Defendant] and 

[Plaintiff] regarding this Agreement, the Note, or any other 

transaction contemplated by this Agreement, the party, [Defendant]

or [Plaintiff], prevailing in that litigation shall be entitled, in addition 

to any other relief that may be awarded, to a reasonable sum as and 

for [Defendant’s] or [Plaintiff’s] attorneys’ fees in that litigation 

which shall be fixed by the court in that litigation or in a separate 

proceeding brought for that purpose.

(Dkt. No. 99-2, Ex. 1 at 15, § 20 (note signed by Plaintiff for FairWay Pricing Technologies, LLC

(“FairWay Pricing”) both as a “Chairperson Executive Committee Manager/Member” of FairWay 

Pricing and as “an individual, Guarantor”) & Ex. 2 at 30, § 19.) 

The other promissory notes provide, in pertinent part:

In the event the Note shall be in default and given to an attorney for 

collection or enforcement, or if suit is brought for collection or 

enforcement, or if it is collected through probate, bankruptcy, or other 

judicial proceeding, then Borrower shall pay Lender all costs of 

collection and enforcement, including reasonable attorney’s fees. 

(Dkt. No. 99-2, Exs. 3-24 at § 5; Exs. 26-33 at § 5.) 

Defendant seeks attorneys’ fees in the amount of $2,666,660. That amount reflects 5,298 

attorney and paralegal hours of work spread across four law firms,

8

and covers the entire duration 

of this litigation—from January 2017 when Plaintiff initiated the underlying action in state court, 

(see Dkt. No. 246-7, Ex. F at 2), to April 2020 when Defendant filed his reply in support of the 

instant motion, (see Dkt. No. 253-2, Ex. A at 9). Thus, Defendant’s motion raises two initial 

questions regarding the scope of the fee-shifting provisions: (1) whether they cover fees incurred 

7 The loan between Defendant and FairWay International Kft, which is located in Hungary, does 

not include a fee shifting provision. (See Dkt. No. 99-2, Ex. 25 at 98.) 

8 The law firm Farmer Brownstein Jaeger Goldstein & Klein LLP (“Farmer”) has been 

Defendant’s primary counsel since the outset of the underlying action in January 2017 to the 

present, (see Dkt. Nos. 246-1 at ¶¶ 2, 29, 30; 246-7, Ex. F; 253-1 at ¶¶ 3-6; 253-2, Ex. A). During 

the course of this litigation, Defendant also retained the services of the following firms: Buchalter, 

A Professional Corporation (“Buchalter”) at various times between November 2017 and April 

2020, (see Dkt. Nos. 246-8 at ¶¶ 4-12, 15; 246-10, Ex. B; 253-3 at ¶¶ 6-9; 253-4, Ex. A); Keller 

Benvenutti Kim LLP (“KBK”) at various times between July 2019 and April 2020, (see Dkt. Nos. 

246-11 at ¶ 4; 246-13, Ex. B; 253-5 at ¶¶ 4-5; 253-6, Ex. A); and Paul Hastings LLP (“Paul 

Hastings”) at various times between May 2018 and March 2020, (see Dkt. Nos. 246-14 at ¶¶ 3-6, 

9; 246-16, Ex. B; 253-7 at ¶¶ 4-7; 253-9, Ex. B). 

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in defending against Plaintiff’s affirmative claims; and (2) whether they cover fees incurred in 

prosecuting all of Defendant’s counterclaims. The Court addresses those questions in turn. 

A. Fees Incurred in Defending Against Plaintiff’s Claims

Plaintiff filed the underlying action in state court on January 17, 2017, bringing claims for: 

(1) breach of fiduciary duty arising out of an alleged partnership between the parties; (2) 

declaratory relief; and (3) an accounting. (Dkt. No. 1-1, Ex. 1.) The complaint lists the dates and 

amounts of the promissory notes at issue, details the collateral for the notes, and discusses the 

MOU. (See id. at 5-7, ¶¶ 9-12.) Plaintiff’s claim for declaratory relief references the promissory 

notes, alleging that the “obligations outlined by the terms of the Notes were modified by the terms 

of the MOU.” (Id. at 8, ¶ 26.) The claim requests “a judicial declaration . . . relating to the above 

and the parties’ rights, duties and obligations to each other.” (Id. at 9, ¶ 29.) Plaintiff’s claim for 

an accounting incorporates “each and every allegation set forth” in the paragraphs that precede it, 

and alleges that “there was a contractual relationship between the Parties and a balance is due and 

accounting.” (Id. at ¶¶ 30-31.) Thus, the claim “demands an accounting of amounts due and 

owing.” (Id. at ¶ 32.) 

Defendant asserts that the language of the fee-shifting provisions encompasses the

affirmative claims set forth in Plaintiff’s complaint because all claims in this action—whether 

brought by Plaintiff or Defendant—“concerned the loan agreements at issue.” (Dkt. No. 246 at 

13.) The Court agrees. 

As to the fee-shifting provisions in the first two promissory notes, the language broadly 

provides for reasonable attorneys’ fees to the prevailing party in “any litigation . . . commenced 

between [Defendant] and [Plaintiff] regarding this Agreement, the Note, or any other transaction 

contemplated by this Agreement.” (See Dkt. No. 99-2, Ex. 1 at 15, § 20 & Ex. 2 at 30, § 19

(emphasis added).) “If a contractual attorney fee provision is phrased broadly enough, . . . it may 

support an award of attorney fees to the prevailing party in an action alleging both contract and 

tort claims.” Santisas v. Goodin, 17 Cal. 4th 599, 836 (1998). The question then is whether the 

breach of fiduciary duty claim constitutes “any litigation . . . regarding” the promissory notes such 

that it triggers the fee-shifting provision pursuant to section 1021. It does. 

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The Court interprets the language “any litigation . . . regarding” the promissory notes as 

including both contract and tort claims that are “in reference or relation to” the notes. See Oxford 

English Dictionary (3d ed. 2009) (defining “regarding” as “[i]n reference or relation to; about, 

concerning”). Plaintiff’s breach of fiduciary duty claim was premised on the existence of a 

partnership between the parties. The complaint alleges, in pertinent part, that “Defendant, as part 

of his agreed upon support for the partnership/joint venture, provided funding for the 

partnership/joint venture which funds were characterized as Promissory Notes.” (See id. at 5, ¶ 9

(listing every promissory note at issue).) In other words, Plaintiff cited the promissory notes as 

evidence supporting his allegations of a partnership and he sought declaratory relief regarding the 

status of those notes. Thus, the breach of fiduciary duty claim was not independent of the 

promissory notes and was instead related to “the underlying transactional relationship between the 

parties, as memorialized by the [promissory notes].” Xuereb v. Marcus & Millichap, Inc., 3 Cal. 

App. 4th 1338, 1344 (1992) (reversing denial of attorneys’ fees on various tort claims, including 

breach of fiduciary duty, pursuant to section 1021 based on broad fee-shifting provision in 

underlying agreement). Accordingly, Defendant’s defense of the breach of fiduciary duty claim 

falls within the broad fee-shifting provision in the first two promissory notes. 

The Court need not determine whether the “collection or enforcement” language in the 

remaining promissory notes encompasses the breach of fiduciary duty claim because there is no 

way to apportion the fees covered under the broadly worded fee-shifting provisions from fees 

related to the other notes. Courts recognize that attorneys’ fees “need not be apportioned when 

incurred for representation on an issue common to both a cause of action in which fees are proper 

and one in which they are not allowed.” See Hjelm, 3 Cal. App. 5th at 1178. It follows that fees 

need not be apportioned when a claim is related to multiple agreements containing fee-shifting 

provisions and the language of some of those provisions cover the fees incurred in defending that 

claim. 

In sum, the fee-shifting provisions were triggered by Plaintiff’s complaint because the 

action was related to the promissory notes for purposes of California Code of Civil Procedure § 

1021. It follows that Defendant, as the prevailing party on all claims in this action, is entitled to 

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reasonable attorneys’ fees incurred in defending against Plaintiff’s affirmative claims. The Court 

next addresses application of the fee-shifting provisions to Defendant’s counterclaims and 

concludes that the fees Defendant incurred in prosecuting those claims are also covered. 

B. Fees Incurred Prosecuting Counterclaims

As previously discussed, Defendant filed his original counterclaim for breach of the 

promissory notes in May 2017. (See Dkt. No. 29.) That counterclaim is clearly encompassed by 

the fee-shifting provisions because it seeks to enforce the terms of the notes. Plaintiff does not 

argue otherwise, and instead challenges the provisions’ application to Defendant’s counterclaim 

for rescission of the MOU. 

The Court concludes that both the broad fee-shifting provisions and the “collection or 

enforcement” provisions apply to Defendant’s rescission counterclaim. “Under California law, the 

parties to a contract have the power to add, change or cancel provisions so long as the purpose and 

effect of the original contract are left undisturbed. Such a modification only supersedes those 

terms to which it relates.” Han v. Mobil Oil Corp., 73 F.3d 872, 876-77 (9th Cir. 1995) (citations 

omitted). The Court’s Findings of Fact and Conclusions of Law determined that the MOU by its 

terms modified only the collateral securing the promissory notes at issue. (Dkt. No. 235 at 14-15, 

29-30, 32 (“[T]he MOU amended only the collateral for the loans and did not amend [Plaintiff’s] 

obligation to repay them.”).) Further, the Court determined that rescinding the MOU would 

clarify Defendant and Plaintiff’s “respective rights and obligations under the MOU and the 

underlying promissory notes.” (Id. at 26.) 

The MOU was therefore inextricably intertwined with the promissory notes because the 

MOU modified the promissory notes’ terms of collateral and enforcing one document was 

dependent on the other. See Han, 73 F.3d at 877 (noting that where supplemental agreement 

modifies and is dependent on original agreement courts may consider those portions of the latter 

not expressly superseded by the former as applying to claim involving breach of the supplemental 

agreement). Thus, the rescission counterclaim is on the contract for purposes of California Civil 

Code § 1717 because it is beyond reasonable dispute that a suit involving the collateral for the 

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shifting provision. See Hjelm, 3 Cal. App. 5th at 1170. 

It is of no moment that the MOU itself does not contain the fee-shifting provision. See 

Mountain Air Enters., LLC v. Sundowner Towers, LLC, 3 Cal. 5th 744, 758 (2017) (concluding 

that attorneys’ fee provision in option agreement applied to claim for breach of separate agreement 

that was superseded by the option agreement because the claim was a “dispute in connection with 

the option agreement”). The modification reflected in the MOU superseded only the terms of 

collateral. It did not affect the fee-shifting provisions or any other terms of the notes. Any effort 

to collect on the notes would require consideration of both the MOU and notes. Thus, the 

rescission counterclaim was clearly a dispute “regarding” the notes for purposes of the first feeshifting provision. 

For the same reasons, the rescission counterclaim also concerned “collection or 

enforcement” of the notes for purposes of the second fee-shifting provision. The Court 

determined after trial that Defendant’s rescission counterclaim sought to restore his direct security 

interest in the FairWay IP to collateralize the promissory notes. (Dkt. No. 235 at 27.) In other 

words, Defendant’s counterclaim had no purpose other than collecting on the notes. 

The authorities cited by Plaintiff do not counsel a different result. Plaintiff broadly asserts 

that Defendant impermissibly mixes “recoverable” fees (i.e., those related to enforcement of the 

promissory notes) with fees related to “other ‘non-recoverable’ legal tasks.” (See Dkt. No. 252 at 

7.) In support Plaintiff cites California Code of Civil Procedure § 1021.5; however, that section 

applies only to attorneys’ fees in cases brought to enforce an “important right affecting the public 

interest” pursuant to California’s private attorney general doctrine. See Cal. Code Civ. Proc. § 

1021.5; see also Friends of Spring St. v. Nevada City, 33 Cal. App. 5th 1092, 1107 (2019) 

(“[S]ection 1021.5 is aimed at encouraging litigants to pursue meritorious public interest litigation 

vindicating important rights and benefitting a broad swath of citizens, and it achieves this aim by 

compensating successful litigants with an award of attorney’s fees.”) (internal quotation marks and 

citation omitted); Bui v. Nguyen, 230 Cal. App. 4th 1357, 1364 (2014) (“In 1977, the California 

Legislature enacted section 1021.5 to provide courts with the statutory authority to award attorney 

fees under a private attorney general theory.”). Thus, section 1021.5 is irrelevant because this 

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action does not involve enforcement of a right affecting the public interest. Instead, this case 

concerns a business relationship between two private litigants seeking only to advance their 

individual interests. 

Plaintiff’s citation to a law firm’s 2017 blog post discussing DisputeSuite.com, LLC v. 

Scoreinc.com, 2 Cal. 5th 968 (2017) is similarly unavailing. (See Dkt. No. 252 at 9-10.) The 

California Supreme Court did not address the scope of fee-shifting provisions in 

DisputeSuite.com, and instead addressed whether the defendant was the “prevailing party” within 

the meaning of California Civil Code § 1717. See 2 Cal. 5th at 974-981. Here, the Court entered 

judgment in favor of Defendant on all claims in this action. Thus, DisputeSuite.com has no 

bearing on the application of the fee-shifting provisions in this case.

***

In sum, the fees Defendant incurred in both defending against Plaintiff’s affirmative claims 

and prosecuting Defendant’s counterclaims are covered by the fee-shifting provisions in the 

promissory notes. The Court turns to the reasonableness of the requested award. 

II. Reasonableness of Requested Award

Under California law “the trial court has broad authority to determine the amount of a 

reasonable fee,” and that inquiry ordinarily involves application of the lodestar method in feeshifting cases.

9

 PLCM Grp., Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000). The parties do not 

9 There is no material difference between California and Delaware law regarding the 

“reasonableness” analysis in fee-shifting cases. In California, the lodestar figure is the starting 

point, and it may be adjusted “after consideration of a number of factors, including the nature of 

the litigation, its difficulty, the amount involved, the skill required in its handling, the skill 

employed, the attention given, the success or failure, and other circumstances of the case.” See 

PLCM, 22 Cal. 4th at 1096 (internal quotation marks and citation omitted). Delaware courts 

consider similar factors in determining whether the requested award is reasonable. See Sternberg 

v. Nanticoke Memorial Hosp., Inc. See 62 A.3d 1212, 1220-21 (2013) (noting that courts 

determine reasonableness of fee-shifting award by considering: “(1) the time and labor required, 

the novelty and difficulty of the questions involved, and the skill requisite to perform the legal 

service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular 

employment will preclude other employment by the lawyer; (3) the fee customarily charged in the 

locality for similar legal services; (4) the amount involved and the results obtained; (5) the time 

limitations imposed by the client or by the circumstances; (6) the nature and length of the 

professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or 

lawyers performing the services; and (8) whether the fee is fixed or contingent.”). The factors 

considered under both California and Delaware law are materially similar, and the touchstone 

under either approach is reasonableness. 

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dispute that the lodestar method is appropriate in this case. The lodestar figure is derived from 

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

rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also PLCM, 22 Cal. 4th at 1095 

(same). The lodestar may be adjusted either upward or downward “after consideration of a 

number of factors, including the nature of the litigation, its difficulty, the amount involved, the 

skill required in its handling, the skill employed, the attention given, the success or failure, and 

other circumstances of the case.” PLCM, 22 Cal. 4th at 1096 (internal quotation marks and 

citation omitted). “[T]he fee applicant bears the burden of establishing entitlement to an award 

and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437. 

As previously discussed, Defendant seeks attorneys’ fees in the amount of $2,666,660, 

reflecting 5,298 attorney and paralegal hours of work spread across four law firms. The Court 

addresses the hours expended and rates charged in turn. 

A. Hours Expended

The number of hours expended should not exceed the number of hours reasonable 

competent counsel would bill for similar services. Hensley, 461 U.S. at 434. Courts may reduce 

the hours expended “where documentation of the hours is inadequate; if the case was overstaffed 

and hours are duplicated; if the hours expended are deemed excessive or otherwise unnecessary.” 

Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (citing Hensley, 461 U.S. at 

433-34). 

Defendant submits declarations of attorneys from the four firms that represented him in 

this action10 attesting to the hours worked by specific attorneys, and redacted invoices reflecting 

those hours. Pursuant to the Court’s May 11, 2020 order, Defendant also submitted unredacted 

invoices for in camera review. (See Dkt. Nos. 256 & 257.) Defendant’s submissions are 

sufficient to support his request for fees. See Steiny & Co., Inc. v. California Elec. Supply Co., 79 

Cal. App. 4th 285, 293 (2000) (“An attorney’s testimony as to the numbers of hours worked is 

10 Lead counsel for Farmer, Mr. Charles R. Jaeger, attests that during the course of the litigation 

Defendant required “additional counsel for work requiring particular expertise.” (Dtk. No. 246-1 

at ¶ 52.) 

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sufficient evidence to support an award of attorney fees, even in the absence of detailed time 

records.”). The declarations and corresponding invoices are detailed and demonstrate that the 

hours expended were reasonable given the complexity, duration, and contentious nature of this 

litigation. It also bears noting that the hours expended reflect time that was already billed to and 

paid in full by Defendant, with the exception of certain of the most recent invoices for February, 

March, and April 2020. (See Dkt. Nos. 246-1 at ¶ 28 & 253-1 at ¶ 4 (attesting that fees for 

Farmer’s services are paid in full through March 2020); 246-8 at ¶ 16 (attesting that fees for 

Buchalter’s services are paid in full through January 2020); 246-11 at ¶ 6 (attesting that fees for 

KBK’s services are paid in full through January 2020); 246-14 at ¶ 10 (attesting that fees for Paul 

Hastings’ services are paid in full through February 2020). Defendant’s payment reflects that he 

understood the hours expended to be reasonable and necessary, and he tendered payment even 

when recovery of those fees was uncertain. In sum, Defendant’s submissions demonstrate that the 

hours expended were reasonable. 

That said, the Court concludes that some portion of the hours of expended by all firms in 

this action was duplicative because it necessarily involved Farmer acquainting subsequent counsel 

with the underlying facts of the case. Plaintiff should not be on the hook for those fees. See 

Hadley v. Krepel, 167 Cal. App. 3d 677, 683 (1985) (finding plaintiff’s objections appropriate as 

to fees “incurred as a result of becoming new counsel and acquainting subsequent counsel with the 

case”). Similarly, a reduction is warranted to the extent the work of counsel from each firm 

necessarily required review of work done by counsel from other firms based on overlapping 

issues. Accordingly, the Court reduces the overall hours expended by the lead attorney from each 

firm (Charles R. Jaeger (Farmer); Valerie Bantner Peo (Buchalter); Peter J. Benvenutti (KBK); 

and Thomas P. Brown (Paul Hastings)) by 5%, resulting in the following breakdown of reasonable 

hours expended:

Farmer: 

Charles R. Jaeger 2,244.8 hours

David M. Goldstein 1,396.8 hours

David Brownstein 84.8 hours

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Kerry C. Klein 175.2 hours

James E. Smith 190.6 hours

Wendy Clymer 63.3 hours

Raquel Rivera 71.2 hours

Jim Absher 3.5 hours

Jackson Jaeger 638.7 hours

Cullen P. Conboy 48.1 hours

Total: 4,917.0 hours

Buchalter:

Robert Zadek 2.7 hours

Shawn Christianson 1.3 hours

Kari Barnes 6.7 hours

Benjamin Heuer 36.1 hours

Valerie Bantner Peo 106.8 hours

Russell L. Allyn .6 hours

David P. Adams 2.8 hours

Mikki F. Varela 4.0 hours

Corina Rachina 9.6 hours

Jason Anthony Sityar 1.5 hours

Total: 172.1 hours

KBK:

Peter J. Benvenutti 50.9 hours

Paul Hastings:

Thomas P. Brown 4.7 hours

Jane Y. Lee 9.3 hours

Taylor L. Reeves 6.6 hours

Abigail H. Wald 5.0 hours

Shreya Gupta 4.0 hours

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Elizabeth Elliott 1.5 hours

Total: 31.1 hours

(See Dkt. Nos. 246-1; 246-8; 246-11; 246-14; 253-1; 253-3; 253-5; 253-7.)

Plaintiff’s opposition broadly asserts that Defendant impermissibly mixes “‘recoverable’ 

attorney fees” (those related to the enforcement of the promissory notes) with ‘non-recoverable’ 

attorney fees” (all other aspects of the litigation). (See Dkt. No. 252 at 6.) That argument fails for 

the reasons previously stated; specifically, Plaintiff’s affirmative claims and Defendant’s 

counterclaims are all covered under the fee-shifting provisions at issue because the status of the 

promissory notes was an issue common to all claims, and as such, all claims are inextricably 

intertwined. See Hjelm, 3 Cal. App. 5th at 1178 (recognizing that “[a]ttorney’s fees need not be 

apportioned when incurred for representation on an issue common to both a cause of action in 

which fees are proper and one in which they are not allowed”) (internal quotation marks and 

citation omitted).

Plaintiff also argues that the amount of fees is “obviously and convincingly excessive” 

because it represents “five times the amount being enforced and collected under the attorney fee 

provision of the loans.” (Dkt. No. 252 at 7.) That argument fails for two reasons. First, the 

Court’s Judgment awarded monetary damages in the amount of $1,410,895.00, reflecting (1) 

$551,433.00 for the aggregate principal amount of the loans at issue, and (2) $859,462.00 in 

accrued interest. (Dkt. No. 240 at 1.) Thus, the amount of fees is not “five times the amount” 

awarded in damages. More importantly, Plaintiff cites no authority for the proposition that an 

award of attorneys’ is per se unreasonable if it exceeds the amount of damages; indeed, there is no 

such authority. See Calvo Fisher & Jacob LLP v. Lujan, 234 Cal. App. 4th 608, 626-27 (2015) 

(rejecting argument that $1.5 million fee award “in connection with the pursuit of a $945,000 

claim” was unreasonable). Second, Plaintiff’s argument is undercut by the tactics he employed in 

this litigation. The docket in this case reflects multiple discovery disputes regarding Plaintiff’s 

failure to comply with his discovery obligations, including Court-ordered production of 

documents. Plaintiff also filed multiple procedurally improper motions or submissions that did 

not comply with the Civil Local Rules, and aggressively prosecuted his claims and opposed 

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Defendant’s counterclaims. Defendant’s response to such tactics took time and attention. Plaintiff 

cannot now assert that such hours were unnecessary. See id. at 627 (finding that fees were 

increased by opposing party’s own conduct, and noting that “one cannot litigate tenaciously and 

be heard to complain about the time necessarily spent . . . in response”) (internal quotation marks 

and citation omitted). 

Having determined that the hours expended were reasonable, the Court turns to the rates 

charged by Defendant’s counsel. 

B. Rates

A reasonable hourly rate is defined as “that prevailing in the community for similar work.” 

PLCM, 22 Cal. 4th at 1095. In general, “the relevant community is the forum in which the district 

court sits,” here, the Northern District of California. See Camacho v. Bridgeport Fin., Inc., 523 

F.3d 973, 980 (9th Cir. 2008). “[T]he burden is on the fee applicant to produce satisfactory 

evidence—in addition to the attorneys’ own affidavits—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.” Id. at 980 (internal quotation marks and citation omitted). Defendant 

has satisfied that burden. 

Defendant submits the declarations of Mr. Jaeger, Ms. Bantner Peo, Mr. Benvenutti, and 

Mr. Brown, who attest to the qualifications and rates of the attorneys and paralegals in this action. 

(See Dkt. Nos. 246-1 at ¶¶ 2-26; 246-8 at ¶¶ 4-13; 246-11 at ¶ 2; 246-14 at ¶¶ 2-7.) Defendant 

also submits the declaration of Richard M. Pearl, a California-based attorney whom Defendant 

retained to provide an expert opinion regarding the reasonableness of the attorneys’ fees requested 

in this case. (Dkt. No. 246-17.) Mr. Pearl attests that he has “frequently been retained as an 

expert witness and/or consultant on attorneys’ fee issues,” and his declaration demonstrates that he 

is qualified to testify as an expert on such matters. (See id. at ¶¶ 4-9.) Mr. Pearl’s declaration 

opines that the rates charged by Defendant’s counsel are reasonable in light of the experience of 

counsel, the work performed, the nature of the litigation and results achieved, rates found 

reasonable in other cases in this District, and the hourly rates charged by law firms of similar 

reputation and size for civil litigation in California. (Id. at ¶¶ 10-25.) 

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Plaintiff does not challenge “the attorney rates quoted by Farmer for the purposes of a 

Lodestar calculation specific only to the enforcement and collection of the loans.” (Dkt. No. 252 

at 5.) Nor does Plaintiff’s opposition address the rates of the other firms Defendant retained in 

this action. Based on Defendant’s evidence as to the reasonableness of the rates charged, and 

Plaintiff’s lack of opposition on that point, the Court is satisfied that the rates are reasonable. 

C. Lodestar

Based on the hours reasonably expended and rates charged, the lodestar figures for 

Defendant’s counsel are as follows:

Farmer: 

Charles R. Jaeger $600/hour 2,244.8 hours

David M. Goldstein $600 1,396.8 hours

David Brownstein $600 84.8 hours

Kerry C. Klein $600 175.2 hours

James E. Smith $175 190.6 hours

Wendy Clymer $175 63.3 hours

Raquel Rivera $150-$175 71.2 hours

Jim Absher $100 3.5 hours

Jackson Jaeger $75 638.7 hours

Cullen P. Conboy $75 48.1 hours

Total: 4,917.0 hours

Lodestar: $2,448,180.50

(See Dkt. No. 253-1 at ¶ 8.) 

Buchalter:

Robert Zadek $810-$815/hour 2.7 hours

Shawn Christianson $550 1.3 hours

Kari Barnes $525-$530 6.7 hours

Benjamin Heuer $450-$525 36.1 hours

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Valerie Bantner Peo $350-$45011 106.8 hours

Russell L. Allyn $445 .6 hours

David P. Adams $350 2.8 hours

Mikki F. Varela $250 4.0 hours

Corina Rachina $310 9.6 hours

Jason Anthony Sityar $215 1.5 hours

Total: 172.1 hours

Lodestar: $76,556.50

(See Dkt. No. 253-3 at ¶ 9.) 

KBK:

Peter J. Benvenutti $800/hour 50.9 hours

Lodestar: $40,720

(See Dkt. Nos. 246-11 at ¶¶ 2, 4 & 253-5 at ¶ 4.) 

Paul Hastings:

Thomas P. Brown $1,225-$1425/hour12 4.7 hours

Jane Y. Lee $850-$885 9.3 hours

Taylor L. Reeves $645 6.6 hours

Abigail H. Wald $775 5.0 hours

Shreya Gupta $690 4.0 hours

Elizabeth Elliott $335 1.5 hours

Total: 31.1 hours

Lodestar: $25,406.40

(See Dkt. No. 253-7 at ¶ 7.)

In line with the above, the Court concludes that a lodestar of $2,590,863.40 is supported by 

11 The Court reduces Ms. Bantner Peo’s hours expended by 5% and accordingly reduces the total 

fee set forth in her declaration by 5% (a reduction of $2,470.50) because her fee reflects a blended 

rate. 

12 The Court reduces Mr. Brown’s hours expended by 5% and accordingly reduces the total fee set 

forth in his declaration by 5% (a reduction of $306.10) because his fee reflects a blended rate. 

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the record. Once a court has determined the lodestar, it may adjust the figure “based on 

consideration of factors specific to the case, in order to fix the fee at the fair market value for the 

legal services provided.” PLCM, 22 Cal. 4th at 1095. Such factors “includ[e] the nature of the 

litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, 

the attention given, the success or failure, and other circumstances in the case.” Id. at 1096 

(internal quotation marks and citation omitted). 

Consideration of the circumstances of this case does not warrant a reduction in the lodestar

primarily because the contentious nature of the litigation and Plaintiff’s failure to comply with his 

discovery obligations is well-documented and required Defendant to expend resources that he 

otherwise would not have needed to expend. The parties vigorously litigated this action for over 

three years; engaging in multiple discovery disputes, filing cross-motions for summary judgment, 

participating in a bench trial, and filing post-trial closing arguments. Defendant has been ably and 

skillfully represented at each stage. Further, the results achieved—a judgment in Defendant’s 

favor as to all claims in this action—likewise support application of the lodestar. And although 

the amount of the award is high, a reduction of the lodestar on such grounds is not warranted 

because Defendant has already paid his attorneys’ fees in full, with the exception of some of the 

most recent invoices for February, March, and April 2020. Thus, as the prevailing party on all 

claims and counterclaims in this action, Defendant is entitled to be compensated in full for those 

amounts pursuant to the promissory notes’ fee-shifting provisions. 

III. Taxable Costs

Federal Rule of Civil Procedure 54(d)(1) creates a presumption that the prevailing party 

will be awarded its taxable costs. See Delta Airlines, Inc. v. August, 450 U.S. 346, 352 

(1981); Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006) (“Under Federal Rule of 

Civil Procedure 54(d), there is a presumption that the prevailing party will be awarded 

its taxable costs.”); see also Fed. R. Civ. P. 54(d)(1) (“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.”). “To overcome this presumption, a losing party must establish a reason to deny 

costs.” Dawson, 435 F.3d at 1070. Further, “[a] district court . . . generally must award costs 

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unless the prevailing party is guilty of some fault, misconduct, or default worthy of punishment.” 

Id. at 1071 (internal quotation marks and citation omitted). 

Pursuant to Rule 54(d)(1), Defendant filed a Bill of Costs with the Clerk of Court on 

March 24, 2020, seeking $20,689.62 in taxable costs. The Clerk has yet to award costs. Plaintiff 

opposes the costs sought on the grounds that Defendant fails to “bifurcate the ‘costs’ between 

‘recoverable’” (i.e., related to enforcing the promissory notes) and “non-recoverable” (i.e., “other 

general legal purposes”). (Dkt. No. 252 at 10.) Plaintiff’s argument is misplaced. Defendant’s 

right to taxable costs as the prevailing party in this action arises from Rule 54(d), not the 

promissory notes’ fee-shifting provisions. Thus, Plaintiff’s objection has no bearing on whether 

Defendant’s Bill of Costs complies with the Standards for Taxing Costs set forth under Civil Local 

Rule 54-3. It does. Further, Plaintiff points to no “fault, misconduct, or default” on the part of 

Defendant that is “worthy of punishment,” such that the presumption under Rule 54(d)(1) does not 

apply. 

CONCLUSION

For the reasons set forth above, the Court GRANTS IN PART Defendant’s motion for 

attorneys’ fees. Defendant is awarded $2,590,863.40 in reasonable attorneys’ fees. The Clerk will 

decide Defendant’s Bill of Costs; however, Plaintiff’s objection about the failure to bifurcate is 

overruled. 

This Order disposes of Docket No. 246.

IT IS SO ORDERED.

Dated: June 8, 2020

JACQUELINE SCOTT CORLEY

United States Magistrate Judge

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