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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: ATTORNEYS’ FEES TO 

ENFORCE JUDGMENT

Re: Dkt. No. 302

Before the Court is Defendant’s motion for attorneys’ fees to enforce the judgment. (Dkt. 

No. 302.)1 After carefully considering the parties’ briefing, including Defendant’s supplemental 

filing, (see Dkt. Nos. 307, 308), the Court GRANTS the motion in part.

BACKGROUND

In February 2020, following a bench trial, the Court entered judgment in favor of 

Defendant and against Plaintiff on Plaintiff’s claims and Defendant’s counterclaims and awarded 

damages to Defendant in the amount of $1,410,895.00. (Dkt. No. 240; see Dkt. No. 235.) The 

judgment also rescinded the December 2011 Memorandum of Understanding and restored 

Defendant’s direct security interest in the FairWay IP. (Dkt. No. 240.) Plaintiff filed a notice of 

appeal of the judgment, which the Ninth Circuit dismissed for lack of jurisdiction as untimely 

filed. (Dkt. No. 259); t’Bear v. Forman, No. 20-15619 (9th Cir. June 26, 2020) (order). In June 

2020, the Court awarded Defendant $2,590,863.40 in attorneys’ fees. (Dkt. No. 258.) Plaintiff 

appealed and the Ninth Circuit affirmed the award. (Dkt. No. 294); t’Bear v. Forman, No. 20-

16348 (9th Cir. Sept. 20, 2021) (order).

1 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.

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After the Ninth Circuit dismissed Plaintiff’s appeal of the judgment and while his appeal of 

the fee award was pending, Plaintiff filed a motion for an order nunc pro tunc to change the filing 

date of his notice of appeal of the judgment. This Court denied the motion in August 2020. (Dkt. 

No. 266.) Plaintiff filed a notice of appeal of that order, which the Ninth Circuit dismissed for 

lack of jurisdiction as untimely filed. (Dkt. No. 286); t’Bear v. Forman, No. 20-16742 (9th Cir. 

Nov. 23, 2020) (order).

In August 2021, Plaintiff filed a motion for relief from (1) the August 2020 order denying 

his request for an order nunc pro tunc and (2) the February 2020 judgment. This Court denied the 

motion in September 2021. (Dkt. No. 295.) Plaintiff filed a notice of appeal, which remains

pending in the Ninth Circuit. (Dkt. Nos. 299, 300.) In November 2021, the Court awarded 

Defendant $48,465.00 in attorneys’ fees incurred in responding to Plaintiff’s motion for relief. 

(Dkt. No. 301.)

According to Defendant, Plaintiff has not paid the $1,410,895.00 judgment or 

$2,639,328.40 combined attorneys’ fees awards. Defendant moves for attorneys’ fees pursuant to 

Federal Rule of Civil Procedure 69(a) and California Code of Civil Procedure § 685.040. He 

seeks fees in the amount of $571,123.00 incurred to enforce the judgment over the past two years 

by defending against Plaintiff’s appeals and by conducting a foreclosure sale on the FairWay IP, 

the collateral that secured Defendant’s loans to Plaintiff. Defendant’s request excludes the work 

underlying both of the Court’s earlier fee awards. (See Dkt. No. 302-1 ¶¶ 20, 31.)

DISCUSSION

I. Attorneys’ Fees to Enforce the Judgment

Motions for attorneys’ fees to enforce the judgment are governed by Rule 69(a), which 

provides that “proceedings supplementary to and in aid of a judgment or execution [] must accord 

with the procedure of the state where the court is located, but a federal statute governs to the 

extent it applies.” Fed. R. Civ. P. 69(a)(1); see Carnes v. Zamani, 488 F.3d 1057, 1059–60 (9th 

Cir. 2007). California procedural law applies here because there is no applicable federal statute. 

See Carnes, 488 F.3d at 1060. California substantive law applies because this is a diversity action. 

See id.

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California’s Section 685.040 provides that a “judgment creditor is entitled to the

reasonable and necessary costs of enforcing a judgment.” Cal. Code Civ. P. § 685.040. The 

statute is “intended to address the problem unique to a claim for postjudgment fees in actions 

based on contract.” Jaffe v. Pacelli, 82 Cal. Rptr. 3d 423, 428 (Cal. Ct. App. 2008) (cleaned up). 

A Section 685.040 motion must be filed before the underlying judgment is fully satisfied. Carnes, 

488 F.3d at 1060. Defendant’s motion is timely in this regard. Two additional elements are 

required: “(1) the fees must have been incurred to ‘enforce’ a judgment; and (2) the underlying 

judgment had to include an award for attorney fees pursuant to [Section 1033.5(a)(10)(A)], which 

provides that attorney fees may be awarded when authorized by contract.” Jaffe, 82 Cal. Rptr. 3d 

at 429.

A. Enforce the Judgment

As to the first element, Defendant argues that it enforced the judgment by defending 

against Plaintiff’s appeals and by conducting a foreclosure sale on the FairWay IP.

1. Appeals

Defendant’s work on Plaintiff’s appeal of the June 2020 attorneys’ fees award (see Dkt. 

Nos. 258, 294) incurred fees to “enforce” the judgment. See Logtale, Ltd. v. IKOR, Inc., No. 11-

cv-05452-EDL, 2019 WL 12517082, at *4–5 (N.D. Cal. Jan. 18, 2019) (awarding Section 685.040 

attorneys’ fees incurred from appeal of attorneys’ fees award in underlying judgment); Rosen v. 

LegacyQuest, 170 Cal. Rptr. 3d 1, 7–8 (Cal. Ct. App. 2014) (“[S]tatutory fee provisions . . . 

include fees on appeal unless the statute expressly states otherwise.”). So too for Defendant’s fees 

incurred from Plaintiff’s appeal of the judgment, (see Dkt. Nos. 240, 259), motions challenging 

the judgment, (see Dkt. Nos. 266, 295), and fully resolved appeal of this Court’s order on one of 

those motions, (see Dkt. Nos. 285, 286). Imperial Bank v. Pim Elec., Inc., 39 Cal. Rptr. 2d 432, 

444 (Cal. Ct. App. 1995) (“Statutory authorization for the recovery of attorney fees incurred in 

trial court proceedings necessarily includes attorney fees incurred on appeal unless the statute 

specifically provides otherwise.”); see also Nomadix, Inc. v. Guest-Tek Interactive Ent. Ltd., No. 

2:19-CV-04980-AB (SKx), 2022 WL 258494, at *1 (C.D. Cal. Jan. 11, 2022) (fees incurred from 

motions challenging judgment); Girlsongs & Warner Bros., Inc. v. Starkey, 108 F.R.D. 275, 278–

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79 (N.D. Cal. 1985) (same); Reveles v. Toyota by the Bay, 67 Cal. Rptr. 2d 543, 552 (Cal. Ct. App. 

1995) (fees incurred from appeal of judgment), abrogated on other grounds by Gavaldon v. 

DaimlerChrysler Corp., 690 P.3d 752 (Cal. 2004). And so too for Defendant’s fees incurred in 

preparing the instant fee motion. See Bruckman v Parliament Escrow Corp., 235 Cal. Rptr. 813, 

819 (Cal. Ct. App. 1987) (“[W]hen an amount of attorney’s fees is statutorily authorized, the 

reasonable expenses of preparing the application for fees should be included in the award.”).

Not so, however, for Defendant’s fees incurred from Plaintiff’s pending appeal of this 

Court’s order denying Plaintiff’s motion for relief from a judgment or order.2 (See Dkt. Nos. 299, 

300.) The Ninth Circuit retains jurisdiction and could reverse this Court’s order; if it does, 

Defendant’s work in unsuccessfully defending Plaintiff’s appeal will not have been necessary to 

enforce the judgment. See MST Farms v. C.G. 1464, 251 Cal. Rptr. 72, 74 (Cal. Ct. App. 1988) 

(“[I]n a proper case the trial court has jurisdiction to award, as an element of costs under section 

1717, attorney fees incurred by the prevailing party in successfully defending or prosecuting an 

appeal.” (emphasis added)). Accordingly, it would be premature to determine that fees for such 

work were incurred to enforce the judgment.

2. Foreclosure

Defendant’s foreclosure on the FairWay IP, which secured Defendant’s loans to Plaintiff,

incurred fees to “enforce” the judgment. Plaintiff has not paid the $1,410,895.00 judgment issued 

by this Court. Accordingly, Defendant’s work to perfect his interest in and foreclose upon the 

FairWay IP was “reasonable and necessary” to satisfy the judgment. Cal. Code Civ. P. § 685.040. 

Defendant, the only bidder at the foreclosure sale, bid $100,000.00 for all the collateral in the form 

of a $100,000.00 credit against Defendant’s secured claim; his bid was declared the highest and 

the collateral was sold to him. (Dkt. No. 302-1 ¶ 29.) Defendant also opposed an application for 

temporary restraining order and preliminary injunction, filed by another creditor in a California 

court, which sought to prevent the foreclosure sale. Although Defendant has not cited a case 

directly on point, courts have awarded fees for comparable work. See Nomadix, 2022 WL 

2 The requested fees represent 1.5 hours of work by Mr. Jaeger and Ms. Klein, each at $675, for a 

total of $1,012.50. (Dkt. No. 308 at 2; see Dkt. No. 302-1 at 49, 51.)

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258494, at *1 (judgment creditor “enforce[d] and collect[ed]” fee award by “conducting discovery 

to identify financial assets to satisfy the award”); Jaffe, 82 Cal. Rptr. 3d 423, 429 n.8, 431 

(judgment creditor filed adversary bankruptcy proceeding to prevent debtor from “sabotag[ing]” 

judgment in bankruptcy). Thus, fees for opposing the competing creditor are awardable as fees 

incurred in enforcing the judgment.

B. Fees Awarded in Underlying Judgment

The second element of Section 685.040 is met. The Court awarded, and the Ninth Circuit 

affirmed, attorneys’ fees incurred prior to the judgment pursuant to California Civil Code § 1717. 

(See Dkt. Nos. 258, 294); see also Logtale, 2019 WL 12517082, at *3 (concluding that party could 

recover attorneys’ fees to enforce the judgment because the court had awarded Section 1717 

attorneys’ fees, even though the award was not in the judgment itself). Section 1717 attorneys’ 

fees are allowable under Section 1033.5(a)(10)(A), and thus under Section 685.040. Cal. Code 

Civ. P. § 1033.5(c)(5)(B); see Carnes, 488 F.3d at 1060; Jaffe, 82 Cal. Rptr. 3d at 429.

* * *

Both required elements are met to award attorneys’ fees under Section 685.040. See Jaffe, 

82 Cal. Rptr. 3d at 429.

II. Reasonable Hours and Rates

Having determined that fees are warranted, the Court turns to calculating the lodestar. See

PLCM Grp. v. Drexler, 997 P.2d 511, 518–19 (Cal. 2000). The lodestar is “the number of hours 

reasonably expended multiplied by the reasonable hourly rate . . . prevailing in the community for 

similar work.” Id. at 518; see In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th 

Cir. 2011). “[T]he fee applicant 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, 433 (1983). Defendant requests $571,123.00 in fees, representing 1,041.45 hours of work by 

attorneys at four firms.3 (Dkt. No. 302-1 ¶ 20; Dkt. No. 302-2 ¶ 18; Dkt. No. 302-3 ¶ 5; Dkt. No. 

3

$417,073.00 for Farmer Brownstein Jaeger Goldstein Klein & Siegel LLP; $84,693.00 for 

Buchalter, A Professional Corporation; $58,380.00 for Keller Benvenutti Kim LLP; and 

$10,976.50 for Orrick, Herrington & Sutcliffe LLP.

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302-4 ¶¶ 6–7.) Plaintiff argues unpersuasively that Defendant and counsel’s conduct was illegal, 

but does not make specific objections to time expended or hourly rates. (See Dkt. No. 303.)

A. Hours

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).

Defendant submits declarations of attorneys from the four firms attesting to the hours 

worked by specific attorneys, and redacted invoices reflecting those hours. This documentation is 

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

App. 4th 285, 293 (2000). The declarations and corresponding invoices are detailed and 

demonstrate that the hours expended were reasonable given the complexity of the appeals, postjudgment motion practice, and FairWay IP issues. That Defendant has already paid for the great 

majority of these hours is an additional indication they were reasonably spent. (Dkt. No. 302-1 ¶ 

19; Dkt. No. 302-2 ¶ 19; Dkt. No. 302-3 ¶ 7; Dkt. No. 302-4 ¶ 9; see Dkt. No. 258 at 12 (noting 

same in June 2020 attorneys’ fees award).)

It was generally reasonable for Defendant to engage three firms outside of his lead counsel 

for targeted work in their areas of expertise. (See Dkt. No. 302-1 ¶¶ 32–35.) That said, a 

reduction is warranted to the extent the work of counsel from each firm necessarily required 

review of work performed by counsel from other firms based on overlapping issues. See Hadley v. 

Krepel, 214 Cal. Rptr. 461, 464 (Cal. Ct. App. 1985) (finding plaintiff’s objections appropriate as 

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

case”). Accordingly, the Court reduces the lodestar by 3% to $553,989.31.4 Additionally, the 

Court’s June 2020 attorneys’ fees award covered work performed through April 30, 2020, when 

Defendant filed the reply to his initial motion for attorneys’ fees. (See Dkt. No. 258 at 5.) The 

4

$404,560.81 for Farmer; $82,152.21 for Buchalter; $56,628.60 for Keller; and $10,647.21 for 

Orrick.

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current motion includes work performed by lead counsel’s firm on April 30, 2020, including 

reply-related work, which the Court excludes as already awarded. (See Dkt. No. 302-1 at 20.) 

This reduces the lodestar by $7,432.50,

5

to $546,556.81. Finally, the Court reduces the lodestar 

by $1,012.50 for work performed (by Farmer) on a pending appeal, as discussed above, to 

$545,544.31.6

B. Rates

A reasonable hourly rate is calculated “according to the prevailing market rates in the 

relevant community” and should be “in line with [the rates] prevailing in the community for 

similar services by lawyers of reasonably comparable skill, experience and reputation.”

Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1053 (9th Cir. 2009) (cleaned up); see 

Children’s Hosp. & Med. Ctr. v. Bonta, 118 Cal. Rptr. 2d 629, 661–62 (Cal. Ct. App. 2002) (same 

under California law). “[T]he relevant community is the forum in which the district court sits.” 

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Defendant requests the 

following rates:

Charles Jaeger Graduated 1989 $600-675

David M. Goldstein Graduated 1989 $600-675

Kerry C. Klein Graduated 1998 $600-675

Jim Smith Senior Paralegal $175-200

Cullen Conboy Case Assistant $75-100

Lizette Tavares Legal Assistant $200

Valerie Bantner Peo Senior Counsel $450-480

Robert Zadek Of Counsel $845

Kari Barnes Graduated 2007 $545

Benjamin Heuer Shareholder $525-550

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5.4 hours by Ms. Klein at $600; 4.7 hours by Mr. Jaeger at $600; 1.4 hours by Mr. Goldstein at 

$600; 7.1 hours by Mr. Conboy at $75. (Dkt. No. 302-1 at 23.)

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$396,115.81 for Farmer; $82,152.21 for Buchalter; $56,628.60 for Keller; and $10,647.21 for 

Orrick. 

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Corina Rachina Paralegal $310

Mikki F. Varela Paralegal $250

Kimberly Wolfe Paralegal $250

Flor Velazquez Research & Information $95

Peter J. Benvenutti Graduated 1974 $800-900

Brian P. Goldman Graduated 2010 $945-1,000

Leigha Henson Paralegal $350

(Dkt. No. 302-1 ¶¶ 4, 7, 8, 10–11, 13, 15–17, 20; Dkt. No. 302-2 ¶¶ 5, 9–15, 18; Dkt. No. 302-3 ¶

2; Dkt. No. 302-4 ¶¶ 2, 4, 7.) At earlier stages of this case, the Court approved as reasonable the 

uppermost requested rates of Mr. Jaeger, Ms. Klein, Ms. Rachina, and Ms. Varela. (Dkt. No. 301-

1 at 2; Dkt. No. 258 at 16–17.)

The requested rates are reasonable and in line with the prevailing rates in this District. 

Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008) (“District judges can certainly 

consider the fees awarded by other judges in the same locality in similar cases. . . . The district 

court’s function is to award fees that reflect economic conditions in the district[.]”); see Chen v. 

Chase Bank USA, N.A., No. 19-cv-01082-JSC, 2020 WL 3432644, at *10 (N.D. Cal. June 23, 

2020) ($475-750 for attorneys); De Leon v. Ricoh USA, Inc., No. 18-cv-03725-JSC, 2020 WL 

1531331, at *15–16 (N.D. Cal. Mar. 31, 2020) ($675-800 for principals); Theodore Broomfield v. 

Craft Brew All., Inc., No. 17-cv-01027-BLF, 2020 WL 1972505, at *11–12 (N.D. Cal. Feb. 5, 

2020) ($475-825 for partners); Wilson v. Red Robin Int’l, Inc., No. 17-cv-00685-BLF, 2018 WL 

5982868, at *3 (N.D. Cal. Nov. 14, 2018) ($120-175 for paralegals); Max Sound Corp. v. Google, 

Inc., No. 14-cv-04412-EJD, 2017 WL 4536342, at *12 (N.D. Cal. Oct. 11, 2017) ($520-950 for 

partners); Dropbox, Inc. v. Thru Inc., No. 15-cv01741-EMC, 2017 WL 914273, at *4 (N.D. Cal. 

Mar. 8, 2017) ($900 for senior partners); (Case No. 14-cv-04086-NC, Dkt. No. 203 at 5, Dkt. No. 

185-1 at 21 ($250-350 for paralegals).) The highest hourly rates, of $800-1,000, remain 

reasonable given this District’s economic conditions. (See Dkt. No. 246-17 at 21–38 (Defendant’s 

fee expert summarizing hourly rates up to $1,500 depending on experience and firm reputation).)

* * *

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Accordingly, the Court awards Defendant $545,544.31 in reasonable attorneys’ fees 

incurred to enforce the judgment.

CONCLUSION

Defendant’s motion is GRANTED in part. The Court AWARDS Defendant $545,544.31 

in attorneys’ fees.

This Order disposes of Docket No. 302.

IT IS SO ORDERED.

Dated: June 29, 2022

JACQUELINE SCOTT CORLEY

United States District Judge

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