Jones v. National Railroad Passenger Corporation

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA AMANDA JONES, Case No. 15-cv-02726-TSH 8 Plaintiff, ORDER RE PLAINTIFF’S MOTION 9 v. FOR SANCTIONS AND COURT’S ORDER TO SHOW CAUSE 10 NATIONAL RAILROAD PASSENGER CORPORATION, et al., Re: Dkt. 456, 467 Defendants.

13 I. INTRODUCTION 14 Plaintiff Amanda Jones moves for sanctions in the amount of $75,594.67 against Defendant Santa Cruz Metropolitan Transit District (“SCMTD”) and/or its counsel. ECF Nos. 456, 464, 465. SCMTD filed an Opposition (ECF No. 469) and Plaintiff filed a Reply (ECF No. 472). In addition, the Court ordered SCMTD and its counsel to show cause why they should not be sanctioned. ECF No. 467. They responded at ECF No. 471. Having considered the parties’ positions, relevant legal authority, and the record in this case, the Court GRANTS Plaintiff’s motion in part and SUSTAINS the order to show cause in part, and orders Robert G. Howie, Counsel for SCMTD, to pay monetary sanctions in amount of $46,363.29 for the following reasons.1 23 II. BACKGROUND 24 November 29, 2023, was the first day of an anticipated two-week trial in the above- captioned matter. The scheduled trial was a retrial, following a trial in March 2023 in which the jury was unable to reach a verdict. Prior to trial, both Plaintiff and Defendant confirmed they were not planning to call any witnesses who did not testify in the previous trial. Pretrial Conf. Tr. at 12–13, ECF No. 461. On the first day of trial, following voir dire by the Court and Plaintiff’s counsel, counsel for SCMTD, Robert G. Howie, began voir dire for the defense. Before asking the prospective jurors any questions, Howie informed the entire pool of prospective jurors that the Plaintiff (1) had multiple sclerosis (MS), and (2) was “confined to a wheelchair for reasons that have nothing to do with” the lawsuit. Trial Tr. at 12–13, ECF No. 460.

7 In its oral ruling granting Plaintiff’s motion for a mistrial, the Court stated the following: 8 The major issue in dispute in this case is causation, and Mr. Howie’s statement in front of the prospective jurors that the plaintiff has MS 9 goes directly to the issue of causation in a way that is prejudicial to Plaintiff’s case. In the previous trial I do not recall there was any 10 mention of MS, and both sides have told me that they were planning to call the same witnesses to testify at this trial as in the previous trial, 11 and so I have no basis to think that evidence regarding MS would be admissible. I do think it is massively prejudicial the way that it was 12 told to the prospective jurors, and, again, it goes directly to the core issue in this case, which is causation. Accordingly, the plaintiff’s 13 motion for a mistrial is granted.

14 Id. at 17.

15 In ECF No. 456, Plaintiff moved for sanctions for attorneys’ fees and costs incurred because of the mistrial. In ECF No. 459, the Court observed that “[t]he responding parties are entitled to notice and an opportunity to respond to the amount of the requested sanctions.”

18 Accordingly, the Court ordered Plaintiff to file by December 15, 2023 one or more declarations specifying in detail the amount of the sanctions and what each cost item is for. Those declarations are filed at ECF Nos. 464 and 465. The Court set the responding parties’ deadline to respond to the motion for sanctions as December 29, 2023, and set January 5, 2024 as the deadline for Plaintiff’s optional reply. ECF No. 459. The Court subsequently ordered supplemental briefing concerning Plaintiff’s request for sanctions. ECF No. 478. The Court set a deadline of May 6, 2024 for Plaintiff’s supplemental brief, a deadline of May 13, 2024 for Defendants’ optional response, and a deadline of May 20, 2024 for Plaintiff’s optional reply. Id. Plaintiff filed a supplemental brief on May 6. ECF No. 480. Defendants did not file an optional response, and Plaintiff did not file an optional reply.

1 the Court should not sanction them for the Court-incurred expenses associated with the empanelment of the prospective jurors, as well for the costs incurred by Plaintiff and Plaintiff’s counsel. In other words, Plaintiff’s fees and costs associated with the mistrial are the subject of both Plaintiff’s motion and the Court’s OSC, whereas the Court’s costs related to the jury empanelment are embraced only by the OSC.

6 III. DISCUSSION 7 Plaintiff moves for sanctions under 28 U.S.C. § 1927, the Court’s inherent power, Civil Local Rules 1-4 and 11-4(a)(4), and California Rule of Professional Conduct 8.4. The Court’s OSC invoked only section 1927.

10 A. Imposition of Sanctions Under 28 U.S.C. § 1927 11 1. Legal Standard 12 Pursuant to 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” “[A] finding that the attorney[] recklessly raised a frivolous argument which resulted in the multiplication of the proceedings’ justifies § 1927 sanctions.” Caputo v. Tungsten Heavy Powder, Inc., 96 F.4th 1111, 1155 (9th Cir. 2024) (quoting In re Girardi, 611 F.3d 1027, 1061 (9th Cir. 2010)) (emphasis in original). Sanctions under § 1927 may only be imposed upon individual attorneys, rather than against the client or law firm. Kaass Law Firm v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293– 94 (9th Cir. 2015).

22 2. Discussion 23 In his opposition, Howie contends that sanctions should only be imposed upon a showing of bad faith or reckless conduct coupled with an improper purpose. Opp’n at 7, ECF No. 469.

25 The Court recognizes that within the last decade, courts in this circuit have not been entirely consistent about whether a finding of bad faith is required to impose sanctions under 28 U.S.C. § 27 1927. However, in Caputo, the Ninth Circuit’s most recent published decision on the matter, the argument which resulted in the multiplication of the proceedings’ justifies § 1927 sanctions.” 96 F.4th at 1155 (quoting In re Girardi, 611 F.3d 1027, 1061 (9th Cir. 2010)) (emphasis in original); see also In re Keegan Mgmt. Co., Secs. Litig., 78 F.3d 431, 436 (9th Cir. 1996) (“Bad faith is present when an attorney knowingly or recklessly raises a frivolous argument.”) (cleaned up).

5 The Court finds Howie’s statements to the prospective jurors constituted the raising of a frivolous argument. Howie did not indicate that any witness would be called to testify that MS caused the injuries Plaintiff alleges, nor did he indicate that any such evidence would be admitted—or even admissible—at trial. See Trial Tr. at 16-17. Howie did state that Dr. Conte determined that Plaintiff has MS, and that her MS was not caused by the accident. But neither side was planning to call Dr. Conte as a witness at trial, which Howie acknowledged. Id. Further, as Plaintiff’s counsel explained, whether the accident caused her MS is “not the issue. The comment is that she needs the wheelchair because she has MS. No one is going to say that.” Id. at 16:10-12. No witness at the previous trial ever mentioned MS as a cause or potential cause of Plaintiff’s alleged injuries, and Howie had confirmed he was not planning to call any new witnesses. Pretrial Conf. Tr. at 13.

16 In the course of voir dire, attorneys sometimes make factual assertions to prospective jurors about the case, usually to help the prospective jurors understand why the attorney is asking about the subject. For example, if a plaintiff is disabled, counsel might mention that fact and then ask the prospective jurors whether they or their close friends or family members have a similar disability or what their experiences may have been in dealing with people who have a similar disability. When an attorney does this, he must have a reasonable belief that evidence will be admitted at trial to support his factual assertions to the prospective jurors about the case. This is basic common sense. Here, Howie had no basis to think there would be any evidence admitted at trial that Plaintiff has MS and that it is the reason she is in a wheelchair. And he knew that. When Plaintiff moved for a mistrial, Howie identified the witness who “would testify that she has MS” – Dr. Conte – and in the same breath said: “The fact is that Dr. Conte was not going to be called” to testify at trial. Trial Tr. at 16:5-7. Howie’s statements to the prospective jurors were therefore 1 Howie contends he was merely looking to elicit information about possible bias regarding the cause of disability. Opp’n at 1–2, 8. Howie argues that by informing the jury that Plaintiff had MS and that she was “confined to a wheelchair” for reasons that had nothing to do with the incident at issue, he was conducting an inquiry into whether jurors would “presum[e] that a wheelchair-bound personal injury plaintiff” who was involved in an accident “is ‘permanently disabled’ and ‘unable to walk’ as a result of the accident versus an illness or otherwise.” Id. at 5.

7 But while Howie characterizes his statement to the prospective jurors as a question (id. at 1, 3, 5– 6, 8–9), Howie’s statements constituted an argument about causation, rather than an inquiry into potential jurors’ preconceptions about what causes disability: 10 THE COURT: Let's have voir dire from the defense, please.

MR. HOWIE: Thank you, Your Honor.

11 Thank you, everyone, for being here. We appreciate it.

I know what it's like to be in the jury box a little bit, and it's very -- 12 sometimes people are recalcitrant about speaking up about bias, if that's exactly what was just the topic.

13 The plaintiff suffers from MS, multiple sclerosis. She's confined to a wheelchair for reasons that have nothing to do with this accident.

15 Trial Tr. at 12–13.

16 Howie’s reliance on Darbin v. Nourse, 664 F.2d 1109 (9th Cir. 1981), in furtherance of this argument, is inapposite. Darbin concerned a civil rights action brought by a former inmate against the county sheriff. There, the Ninth Circuit held that the trial court’s refusal to inquire on voir dire into whether prospective jurors were more likely to believe the testimony of a police officer simply because of his position constituted an abuse of discretion because that inquiry was necessary to probe for bias. Darbin, 664 F.2d at 1114–15. Here, Howie made no inquiry, nor did his statements indicate an attempt to determine whether prospective jurors held any preconceptions about what causes disability. Rather, he simply announced to the jury pool that Plaintiff had MS, and implied that Plaintiff was in a wheelchair exclusively due to MS. 25 Howie further contends these statements were justified because Plaintiff’s counsel had already introduced a theory of causation to the jury, referring to the following excerpt from Plaintiff’s voir dire. permanent disability as a result of this incident, if I came up here and 1 I asked you -- and so not walking anymore, not able to travel, things like that.

2 If I came up here and I asked you for – So juror number 3, if I asked you for $50 million, would you say 3 there's absolutely no way I would do that. I don't care what you show me.

5 Trial Tr. at 7. However, Plaintiff’s counsel framed such a theory as a hypothetical finding the jury might make, rather than an assumption underlying the remaining facts of the case. More importantly, there was going to be some evidence at trial to support the claim that the Plaintiff sustained a permanent disability as a result of this incident. That’s why we are having a trial.

9 Thus, while Plaintiff’s counsel asked a hypothetical that asked the prospective jurors to assume contested facts, she did not taint the jury pool by introducing facts that would never come into evidence.

12 The Court is likewise unpersuaded by Howie’s explanation that a curative instruction would have sufficed. As Howie points out in his opposition, this is a personal injury case. The only claim remaining at issue for trial is negligence, for which causation of Plaintiff’s injuries is a central issue. Further, MS is not an obscure disease that few people have heard of. Right off the bat Howie tainted the entire venire by implying that a highly recognizable disease was the true cause of Plaintiff’s injuries, when he knew that no evidence to that effect was likely to be admitted at trial.

19 Howie’s conduct was thus extremely prejudicial, and the Court finds this conduct was reckless, in addition to frivolous. Howie’s actions clearly multiplied the proceedings. As a direct result of the statements Howie made during voir dire, the Court will have to hold a third trial in this case, resulting in yet another jury selection process and some duplication of trial preparation efforts.

24 Accordingly, pursuant to 28 U.S.C. § 1927, the Court SANCTIONS Howie and concludes he must personally satisfy the excess costs, expenses, and attorneys’ fees reasonably incurred because of his conduct at trial.

1 3. Amount of Sanction 2 a. Court Costs 3 As noted above, one category of costs that was the subject of the OSC was the Court’s costs incurred in connection with the empanelment of the venire. ECF No. 467.

5 Howie argues that sanctions for court costs are not available under 28 U.S.C. § 1927. ECF No. 471 at 9. It turns out that this argument is more complicated than it might seem. In June 1980, the Supreme Court held that “costs” under 28 U.S.C. § 1927 refer only to taxable costs enumerated in 28 U.S.C. § 1920. Roadway Express, Inc. v. Piper, 447 U.S. 752, 757-63 (1980).

9 At the time, 28 U.S.C § 1927 read: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.” 447 U.S. at 756 n.3. However, three months after the Supreme Court’s decision in Roadway Express, Congress amended 28 U.S.C. § 1927 to include excess “expenses” and “attorneys’ fees” reasonably incurred because of such conduct. See Act of September 12, 1980, Pub. L. No. 96–349, 94 Stat. 1154. This is the amendment: 16 Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the 17 proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such 18 excess costs the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

20 Accordingly, an award of sanctions under § 1927 is no longer limited to taxable costs but may also include reasonable expenses and attorneys’ fees. See, e.g., Morrison v. Walker, 939 F.3d 633, 635 (5th Cir. 2019) (explaining that the 1980 amendment to 28 U.S.C. § 1927 “broaden[ed] lawyers’ personal financial exposure to include ‘expenses and attorneys’ fees.’”).

24 In reviewing the case law interpreting section 1927, however, it is not clear that the 1980 statutory amendment has gotten the attention it deserves. Sure, the word “costs” in section 1927 still refers to the items enumerated in section 1920 – that’s the holding of Roadway Express. But the big change is that something doesn’t need to be a “cost” anymore to be recoverable under Court’s holding in Roadway Express that “costs” in section 1927 means the same thing as the costs enumerated in section 1920, when Congress then promptly amended section 1927 to also allow for the recovery of “expenses,” presumably that meant something else. Nonetheless, the appellate case law disallowing the award of jury fees under section 1927 consists essentially of citations to Roadway Express and the holding that jury fees are not “costs” within the meaning of section 1920. See Boettcher v. Hartford Ins. Group, 927 F.2d 23, 25 (1st Cir. 1991); Eash v. Riggins Trucking Inc., 757 F.2d 557, 560 (3rd Cir. 1985); United States v. Austin, 749 F.2d 1407, 1409 (9th Cir. 1984). One district court outside of the First, Third and Ninth Circuits declined to follow these circuit precedents and awarded jury fees under section 1927 because these decisions do not “account for the fact that Congress expanded the breadth of § 1927 after the Roadway Express decision.” See Dowe v. National R.R. Passenger Corp., 2004 WL 1393603, *4 (N.D. Ill. June 22, 2004) (awarding jury fees under section 1927 and declining to follow these circuit precedents).

14 This Court is in the Ninth Circuit and is therefore bound by Austin. But even were that not the case, the Court would still conclude that, notwithstanding the 1980 amendment, jury fees remain unavailable under section 1927. As a result of the 1980 amendment, section 1927 now contains a list of sanctions that may be awarded for vexatious conduct: “the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” “[T]he canon of noscitur a sociis teaches that a word is ‘given more precise content by the neighboring words with which it is associated.’” Fischer v. United States, 603 U.S. __, 144 S. Ct. 2176, 2183 (2024) (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). “[A] word is known by the company it keeps (the doctrine of noscitur a sociis). This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving ‘unintended breadth to the Acts of Congress.’” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).

26 We know from Roadway Express that “costs” in section 1927 mean costs incurred by one’s opponent within the meaning of section 1920. We know from common sense that in section 1927 include jury fees incurred by the court, then “expenses” is not similar to the words around it because these fees are not incurred by one’s opponent. The better interpretation, in keeping with noscitur a sociis, is that costs, expenses and attorneys’ fees all refer to things incurred by one’s opponent. Cf. Eash, 757 F.2d at 560 (“Neither § 1920 nor § 1927 contains reference to the costs of impaneling a jury, costs which customarily are borne by the government.

6 Only the opposing litigants’ costs and expenses incurred by virtue of an attorney’s misconduct are within the ambit of the statutes.”). Accordingly, the Court does not impose monetary sanctions under section 1927 for any costs incurred by the court.

9 b. Plaintiff’s Fees and Expenses 10 Plaintiff seeks a total in fees and costs of $75,594.67 (ECF No. 464, 465), consisting of $59,797.31 charged by Carla D. Aikens, PLC (Decl. of Carla Aikens ¶¶ 12–13 & Ex. A to Aikens Decl. at 4), and $15,797.36 charged by Peiffer Wolf Carr Kane Conway & Wise LLP (“Peiffer Wolf”). Decl. of Catherine Cabalo ¶ 12 & Ex. A to Cabalo Decl. at 3, Ex. B to Cabalo Decl. at 2, 4.

15 i. Attorney’s Fees 16 aa. Reasonable Hourly Rates 17 “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. 1986) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987). “Generally, the relevant community is the forum in which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). “The burden is on the fee applicant to produce satisfactory evidence – in addition to the attorney’s 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.” Blum, 465 U.S. at 896 n.11.

26 Plaintiff asks that her attorneys, including Plaintiff’s lead attorney, Carla Aikens, be compensated at their current hourly rates. Howie contends that the hourly rates claimed by theory of liability.” Opp’n at 9.

2 Based on the Court’s own experience and knowledge, the hourly rate requested for Aikens is within the range of reasonable hourly rates for attorneys of comparable skill, experience, and reputation doing similar work in the San Francisco Bay Area. See Ingram v. Oroudjian, 647 F.3d 5 925, 928 (9th Cir. 2011) (“judges are justified in relying on their own knowledge of customary rates and their experience concerning reasonable and proper fees.”). Aikens asks that she be compensated at her current hourly rate of $750 per hour. Aikens Decl. ¶ 7. Aikens submitted a declaration in support of this rate, as well as a copy of the State Bar of Michigan’s 2023 Economics of Law Survey Results, which includes detailed hourly rate information by practice area. See Supp. Decl. of Carla Aikens at 1–2 & Ex. 1 to Aikens Supp. Decl. at 5–17, ECF No. 473. She received a J.D. degree from Georgetown University Law Center and served as a federal judicial law clerk in the United States District Court for the Eastern District of Michigan. Aikens Decl. ¶ 2. She has been practicing law since 2005. Id. ¶ 1. Following her time at two large law firms, Aikens started her own firm in 2010. Id. ¶ 4. The Court finds Aikens’ requested hourly rate is in line with personal injury lawyers of her experience and qualifications in the Detroit metro area, and that hourly rates in this district are at least as high as those in Detroit.

17 After reviewing the supporting declaration and considering the experience of counsel, her professional qualifications, and the nature of their responsibilities in this matter, the Court finds Catherine Cabalo’s requested hourly rate of $920 is excessive given the limited scope and relative simplicity of the case and Cabalo’s responsibilities in the matter. Cabalo, Plaintiff’s local counsel, asserts that her reasonable hourly rate is $920. Cabalo submitted a declaration in support of this rate. Cabalo Decl. ¶ 6. Cabalo graduated from the University of Washington Law School in 2001 and served as a judicial law clerk in the Hawaii Supreme Court. Id. ¶ 3. Cabalo founded Peiffer Wolf’s Disability Rights Practice Group in 2016 and has served as the firm’s Practice Chair since then. Id. ¶ 4. In support of the hourly rate she seeks, Cabalo explains that this district previously approved her $785 hourly rate in 2020 in Nevarez v. Forty Niners Football Co., et al., No. 16-CV- 07013-LHK, and contends that an annual 5.5% increase from that rate is reasonable. Supp. action involving multiple claims. The other examples Plaintiff provides of similar or higher hourly rates approved by this district were likewise for more complex matters than the instant personal injury case. See Roe v. SFBSC Management, LLC, et al., No. 17-cv-06971-LB, ECF No. 129 (approving attorney’s fees in class action settlement); Roe v. SFBSC Management LLC, et al., N.D. Cal. Case No.14-cv-03616-LB, ECF No. 270-1 (granting motion for attorney’s fees in putative class action); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, No. 16- cv-00236-WHO, 2020 WL 7626410, at *3 (finding similar hourly rates “reasonable given the scope and complexity of this case”). The Court is likewise unpersuaded that Cabalo’s work with ADA transportation expert Douglas Cross justifies the fees Plaintiff demands for local counsel in an individual personal injury action with one remaining negligence claim. Accordingly, the Court approves Cabalo’s hourly rate at $785 for this case.

12 Associate attorney Khushpreet Mehton recorded 2.6 hours at a rate of $600 per hour conducting research for the motion for sanctions. Cabalo Decl. ¶¶ 8, 11. Based on the Court’s experience and knowledge, the Court approves an hourly rate of $550 for Mehton.

15 Howie did not contest the $150 hourly rate for Aikens’ legal assistant, Katarzyna Pazik.

16 See Opp’n at 10–11; Aikens Decl. ¶ 11. The Court finds this hourly rate is reasonable and comparable to that of experienced legal assistants in this district and approves an hourly rate of $150 for substantive legal work performed by Pazik.

19 bb. Scope of Attorney’s Fees 20 Plaintiff asserts that one attorney and one legal assistant at Carla D. Aikens, PLC, devoted 62.3 hours to preparing for and attending the second trial in this matter and 15.5 hours to meeting with Plaintiff after the mistrial and preparing Plaintiff’s motion for sanctions and attached declarations. Ex. A to Aikens Decl. at 2–3, ECF No. 464-1; Supp. Aikens Decl. at 20, Ex. 472-2 (amended hours including time preparing reply). Plaintiff also seeks $15,452.00 in fees incurred by local counsel Peiffer Wolf. Partner Catherine Cabalo recorded 6.1 hours preparing for the November 2023 trial in the leadup to the trial date and recorded 9 hours from the date of the trial preparing for voir dire, attending the first day of the trial, and preparing the declaration and 465-1.2 Associate attorney Khushpreet Mehton recorded 2.6 hours conducting research for the motion for sanctions. Cabalo Decl. ¶ 8.

3 Howie contends that trial preparation costs would have been incurred regardless of the mistrial, and that fees that would not have been incurred but for the mistrial are thus confined to the date of the mistrial. Opp’n at 10–11. It is true that, had a mistrial not been declared, Plaintiff would have born trial costs anyway. But a mistrial means that Plaintiff will have to bear these costs twice—another trial will need to be scheduled, which will result in some duplication of trial preparation efforts. Still, the Court agrees with Howie that some of Plaintiff’s preparation for trial was not wasted, as it may still be useful for the continued trial date. Several of the timekeeping entries for which Plaintiff seeks reimbursement will likely reduce the workload for the continued trial, rather than needing to be reduplicated in full (e.g., preparation of pretrial filings and exhibits, reviewing pretrial motions, and reviewing witness list and verdict form). Accordingly, the Court applies a fifty percent reduction to the total, otherwise compensable, time billed before November 29, 2023, the date of mistrial.

15 In addition to the issues raised by Howie, the Court finds that certain billing entries submitted by Plaintiff seek to recover for administrative tasks or time. The Court finds that Aikens has sufficiently established Pazik’s qualifications to perform substantive legal work.

18 However, the Court finds that several of Pazik’s time entries for which Plaintiff seeks attorney’s fees are administrative rather than legal in nature. See Mente Grp. LLC v. Arnell Enterprises, Inc., No. 20-cv-07459-VKD, 2022 WL 4391423, at *8 (N.D. Cal. Sept. 22, 2022) (party seeking to recover attorney’s fees for work performed by legal assistants “must establish . . . that the legal assistant performed substantive legal work under the direction and supervision of an attorney”) (internal quotations and citations omitted). The substantive tasks Pazik performed, such as preparing subpoenas and preparing a motion for witnesses to appear remotely, are specific to the circumstances of the trial that was scheduled to begin November 29, 2023, and will need to be Cabalo’s declaration attests that she recorded 14.4 hours in total, while the attached time log lists 15.1 hours of work performed, including an additional 0.7 hours for “Continued Preparation of reduplicated at least in part for the continued trial. Accordingly, the Court will count 2.7 hours logged by Ms. Pazik, representing timekeeping entries for substantive legal work, toward attorney’s fees for trial preparation.

4 The Court also declines to include in Plaintiff’s reimbursable attorney’s fees time spent traveling and not otherwise preparing for trial. Accordingly, the Court subtracts the time billed by Cabalo to travel to attend the trial and pre-trial conference, during which she does not indicate that she was preparing for trial. The Court also reduces one of Aikens’ time entries where it does not seem realistic that she was engaged in trial preparation during the entire time of her travel.

9 cc. Conclusion – Attorney’s Fees 10 Accordingly, the Court grants Plaintiff’s request for reimbursement of attorney’s fees in the amount of $40,664.25, including $24,210.00 for the day of the mistrial and the subsequent motions for fees and $16,454.25 toward trial preparation, as detailed below.

Date Time- Description Hour Time Fees Requested Adjuste Reduc- Time Adjusted 14 keeper ly billed d tions minus Fees Rate Hourly reduction 15 mCl ea di Rate s 11/29/23 C. Aikens Preparation for and $750 6.5 $4,875 $750 – 6.5 $4,875 16 attendance at trial.

11/29/23 C. Aikens Internal discussion re $750 1.2 $900 $750 – 1.2 $900 17 next steps and filing motions 18 11/30/23 C. Aikens Meeting with client re $750 0.3 $225 $750 – 0.3 $225 mistrial 11/30/23 C. Aikens Research and draft $750 3.8 $2,850 $750 – 3.8 $2,850 19 motion for fees; internal 20 correspondence with counsel re same.

21 12/11/23 C. Aikens Preparation of time $750 0.8 $600 $750 – 0.8 $600 data for use in declaration 22 12/15/23 C. Aikens Preparation of $750 4.0 $3,000 $750 – 4.0 $3,000 declaration and 23 transferring time data 1/2/23 C. Aikens Research and draft $750 3.1 $2,325.00 $750 – 3.1 $2,325.00 24 reply; correspond with CC re same 25 1/5/23 C. Aikens Draft and prepare $750 2.3 $1,687.50 $750 – 2.3 $1,687.50 reply 11/29/23 C. Cabalo Continued review & $920 0.5 $460 $785 – 0.5 $392.50 26 analysis of Juror Questionnaires to 27 prepare for voir dire.

11/29/23 C. Cabalo Travel to/from (1.0) $920 5.5 $5,060 $785 1 hour 4.5 $3,532.50 11/29/23 C. Cabalo Multiple messages w/ $920 0.4 $368 $785 – 0.4 $314 1 D. Cross RE: mistrial & next steps.

2 11/29/23 C. Cabalo Review & analysis of $920 0.2 $184 $785 – 0.2 $157 ECF 453 (Minute 3 Entry RE: Juror Selection & Mistrial) (0.1) & ECF 454 4 Trial Log Day 1 (0.1).

12/4/23 C. Cabalo Strategize Motion for $920 0.2 $184 $785 – 0.2 $157 5 Sanctions w/ C.

Aikens.

6 12/4/23 C. Cabalo Prepare Declaration $920 1.5 $1,380 $785 – 1.5 $1,177.50 & compile exhibits ISO Motion for 7 Sanctions 12/12/23 C. Cabalo Continued $920 0.7 $644 $785 – 0.7 $549.50 8 preparation of Declaration ISO 9 Motion for Sanctions.

11/29/23 K. Review local, federal, $600 1.2 $720 $550 – 1.2 $660 10 Mehton and professional rules of conduct sections relevant to motions 11 for sanctions.

11/30/23 K. Westlaw research re $600 1.4 $840 $550 – 1.4 $770 12 Mehton case law supporting motion for sanctions 13 based on mistrial.

Email findings to C.Cabalo and 14 C.Aikens.

Trial and Motion Totals 15 Trial and motion totals: Carla Aikens $750 22 $16,500 $750 22 $16,500 Trial and motion totals: Cat Cabalo $920 9 $8,280 $785 1 hour 8 $6,280 16 Trial and motion totals: Khushpreet Mehton $600 2.6 $1,560 $550 2.6 $1,430 Total Fees Total Requested Adjusted 17 Fees $26,340 $24,210 Hourly Adjusted Time 20 Rate Time Fees Hourly Reduc- Minus Adjusted Date Timekeeper Description Claimed Billed Requested Rate tions Reductions Fees 21 Internal corr. re preparing for trial and 22 coordinating remote 10/17/23 C. Aikens witnesses. 750 0.2 150 750 – 0.2 150 23 Coordination and review of exhibits for printing; 10/27/23 C. Aikens internal corr re same. 750 0.8 600 750 – 0.8 600 Preparation and review 25 pretrial filings, motion, and internal 11/1/23 C. Aikens correspondence re same 750 2.8 2100 750 – 2.8 2100 Review of filing, 27 correspondence re exhibits and trial Exhibit preparation and 11/6/23 C. Aikens corr with printer 750 1.5 1125 750 – 1.5 1125 Correspondence re 2 exhibit preparation and 11/7/23 C. Aikens printing 750 1.2 900 750 – 1.2 900 3 Review of Defendant's proposed jury instruction 4 modifications; internal 11/7/23 C. Aikens corr re same 750 0.3 225 750 – 0.3 225 5 Trial prep re witnesses and exhibits; internal 11/8/23 C. Aikens corr re same 750 1.7 1275 750 – 1.7 1275 Corr re exhibit printing 11/9/23 C. Aikens and trial witnesses 750 0.8 600 750 – 0.8 600 11/10/23 C. Aikens Corr re witnesses 750 0.3 225 750 – 0.3 225 Review court order re: 11/14/23 C. Aikens r inea tel- rt ni am l e c otr ra rn rs ec sri ap mts e; 750 0.2 150 750 – 0.2 150 10 Review of defense witness list, verdict form, and draft 11 objections to same; review of objections to 12 witnesses; internal corr.

11/15/23 C. Aikens re same 750 0.8 600 750 – 0.8 600 13 trial preparation and 11/16/23 C. Aikens internal corr re witnesses 750 0.9 675 750 – 0.9 675 14 Review of pretrial motions and corr with 11/20/23 C. Aikens staff re same 750 0.7 525 750 – 0.7 525 Review Defendant's 11/20/23 C. Aikens administrative motions. 750 0.2 150 750 – 0.2 150 Review order granting 17 admin. motion re 11/21/23 C. Aikens electronic equipment 750 0.1 75 750 – 0.1 75 18 Review of pretrial filings and motions; internal 11/22/23 C. Aikens corr. re same 750 0.8 600 750 – 0.8 600 Preliminary review of 11/22/23 C. Aikens j cu or ry r rm e a st ae mria el s; internal 750 0.3 225 750 – 0.3 225 11/23/23 C. Aikens Corr re trial prep 750 0.3 225 750 – 0.3 225 Review draft of 22 Plaintiff's admin motion for filing; internal corr re 11/23/23 C. Aikens same 750 0.2 150 750 – 0.2 150 Corr w counsel and 11/26/23 C. Aikens expert re trial 750 0.2 150 750 – 0.2 150 Travel to California 25 (trial preparation during 1.5 11/27/23 C. Aikens flight) 750 5.5 4125 750 (travel) 4 3000 26 Trial preparation; 11/27/23 C. Aikens internal corr. re same 750 6 4500 750 – 6 4500 27 Review of additional survey; internal corr re Trial preparation; 1 including meeting with expert; internal corr. re 11/28/23 C. Aikens same 750 11.2 8400 750 – 11.2 8400 Review & analysis of 3 ECF 432 (SCMTD's Witness & Exhibit Lists) 4 to determine necessary 11/1/23 C. Cabalo further action. 920 0.2 184 785 – 0.2 157 5 Review & analysis of ECF 436 (Order Granting Motion RE: Exhibits) to determine 11/2/23 C. Cabalo necessary further action. 920 0.1 92 785 – 0.1 78.5 Review & analysis of ECF 437 (SCMTD 8 Proposed Verdict Form) & ECF 438 (SCMTD 9 Jury Instructions) to determine possible 10 11/7/23 C. Cabalo r ne es cp eo sn sas re ys fto u rs ta hm ere a & ct ion. 920 0.2 184 785 – 0.2 157 11 Review & analysis of ECF 439 (Clerk’s Notice RE: Trial Deadline for 12 Daily Transcript and/or Realtime Reporting) to 13 determine necessary 11/13/23 C. Cabalo further action. 920 0.1 92 785 – 0.1 78.5 14 Review & analysis of ECF 440 (SCMTD 15 Objections to P’s Exhibit List) & ECF 441 (SCMTD Objections to 16 P’s Witness List) to determine necessary 11/15/23 C. Cabalo further action. 920 0.1 92 785 – 0.1 78.5 Review & analysis of 18 ECF 443 (SCMTD Request RE: Zoom 19 testimony) & ECF 444 (SCMTD Request RE: electronics/equipment) to determine necessary 11/20/23 C. Cabalo further action. 920 0.2 184 785 – 0.2 157 Review & analysis of ECF 445 (Order RE: 22 Trial Technology) & ECF 446 (Order 23 Granting ECF 444) to determine necessary 11/21/23 C. Cabalo further action. 920 0.2 184 785 – 0.2 157 Review & analysis of 25 email & multiple attachments from Jury Clerk Eric Diaz RE: 26 Judge's List and juror info to determine 27 necessary further action & prepare for voir dire Review & analysis of 1 email & multiple attachments from E.

2 Diaz RE: juror #5 & updated juror documents 3 to determine necessary further action and to prepare for voir dire & 11/27/23 C. Cabalo jury selection. 920 0.4 368 785 – 0.4 314 Travel to/from (1.0) & 5 attend Final Pretrial Conference (0.5) and 6 A/V courtroom staging 1 11/27/23 C. Cabalo (0.5). 920 2 1840 785 (travel) 1 785 7 Receipt, review, & analysis of ECF 452 8 (Minute Entry RE: Final Pretrial Conference) to 11/27/23 C. Cabalo confirm juror excusals. 920 0.1 92 785 – 0.1 78.5 Multiple messages w/ 10 ADA Transportation expert Doug Cross RE: 11/27/23 C. Cabalo trial prep. 920 0.3 276 785 – 0.3 235.5 Message (0.1) & email (0.1) to D. Cross RE: 12 expert trial prep; Zoom trial prep w/ D. Cross & 13 C. Aikens (1.0); review & analysis of multiple 11/28/23 C. Cabalo e Rm Ea : i tl rs i af lr o pm re pD (. 0 C .4ro ).s s 920 1.6 1472 785 – 1.6 1256 15 Correspondence with counsel regarding trial 0.1 8/21/23 K. Pazik books 100 0.1 10 n/a (admin) 0 0 Contact court regarding extending time to print 01 10/31/23 K. Pazik exhibits. 125 0.1 12.5 n/a (admin) 0 0 Draft and revise witness 1 11/1/23 K. Pazik and exhibit list 150 1 150 n/a (admin) 0 0 19 11/1/23 K. Pazik S exe tt e u np d and file motion to 150 0.6 90 150 – 0.6 90 20 11/2/23 K. Pazik Prepare subpoenas 150 1 150 150 – 1 150 Contact court regarding 0.1 21 11/2/23 K. Pazik exhibits 150 0.1 15 n/a (admin) 0 0 Coordinating with 22 process server for 1 11/3/23 K. Pazik subpoenas 150 1 150 n/a (admin) 0 0 23 Preparing trial books for printing. Calls with 4 24 11/7/23 K. Pazik printer. 150 4 600 n/a (admin) 0 0 Scheduling with 1 11/20/23 K. Pazik witnesses for Plaintiff 150 1 150 n/a (admin) 0 0 Prepare and file 26 administrative filings for 1.3 11/21/23 K. Pazik trial 150 1.3 195 n/a (admin) 0 0 27 Scheduling with 1 11/21/23 K. Pazik witnesses for Plaintiff 150 1 150 n/a (admin) 0 0 witnesses for Plaintiff (admin) Prepare motion for 2 witnesses to appear remotely; file after 11/27/23 K. Pazik editing on 11/26. 150 1.1 165 150 – 1.1 165 0.1 11/27/23 K. Pazik Email with expert. 150 0.1 15 n/a (admin) 0 0 Scheduling with 2 11/27/23 K. Pazik witnesses for Plaintiff 150 2 300 n/a (admin) 0 0 Trial Preparation Totals 1.5 Trial Preparation: Carla Aikens 750 39.5 $29,625 750 (travel) 38 $28,500 Trial Preparation: Cat Cabalo 920 6.1 $5,612 785 (travel) 5.1 $4,003.50 13.7 Trial Preparation: Katarzyna Pazik variable 16.4 $2,452.50 150 (admin) 2.7 $405 Trial Preparation: Adjusted fees before applying 50% reduction $37,689.50 $32,908.50 Trial preparation: Total adjusted fees after 50% reduction applied $16,454.25 12 ii. Expenses 13 Aikens also seeks $15,344.81 in costs for out-of-pocket expenses incurred to prepare for and attend the second trial. Ex. A to Aikens Decl. at 4. These costs include fees directly related to the trial, as well as food and travel costs Aikens Decl. ¶ 13 & Ex. A.

16 As discussed above, in Roadway Express, the Supreme Court held that “costs” under section 1927 referred only to taxable costs enumerated in section 1920. However, three months after the Supreme Court’s decision in Roadway Express, Congress amended section 1927 to include excess “expenses” and “attorney’s fees” reasonably incurred because of such conduct.

20 Accordingly, an award of sanctions under section 1927 is no longer limited to taxable costs but may also include reasonable expenses. See Morrison, 939 F.3d at 635.

22 aa. Service, printing and delivery fees, and expert fees 23 Aikens seeks $10,418.93 in additional expenses directly related to the trial, broken down as follows: (1) service of process for subpoena on Christian Nieto $75.00; (2) service of process for subpoena on Shonoa Ruddick $75.00; (3) printing and delivery fees for Trial 2 $8,326.11; and (4) expert fees for Douglas Cross from 10/17/23–11/29/23 $1,942.82. Ex. A to Aikens Decl. at 3– 4; Ex. 2 to Supp. Aikens Decl. at 36–37, ECF No. 473. The Court finds these expenses are The Court finds that the printing and delivery fees for the trial were not necessarily wasted; Plaintiff can reuse the exhibits and print any new exhibits separately for the continued trial. As to expert witness fees, the Court expects that although some of the work performed by Plaintiff’s expert witness will need to be performed again at the continued trial, at least some of the work he performed in the weeks leading up to trial was not wasted. Accordingly, the Court grants Plaintiff’s request for reimbursement for service of process expenses in full and grants her request for reimbursement of fifty percent of expert fees Plaintiff seeks. The Court denies Plaintiff’s motion for reimbursement for Plaintiff’s printing and delivery expenses.

9 bb. Meals 10 Aikens seeks $426.20 in meal expenses, as follows: (1) airport meals $28.52; (2) lunch prior to expert meeting $21.19; (3) food and snacks for week of trial $144.99; (4) dinner at hotel $104.61; (5) meal at courthouse $8.95, and (6) lunch at hotel $117.94. Ex. A to Aikens Decl. at 4; Ex. 2 to Supp. Aikens Decl. at 22–23; 32–33. Plaintiff also seeks reimbursement of $345.36 in out-of-pocket meal expenses incurred by local counsel Peiffer Wolf to attend the November 2023 trial, including $33.19 in lunch from the Court cafeteria for herself and Aikens, and $312.17 for dinner for herself and Aikens on November 29, 2023. Cabalo Decl. ¶ 12; Ex. B to Cabalo Decl. at 2, 4, ECF No. 465-2. The Court finds Aikens’ first, second, third, and fifth meal expenses reasonable, as well as Cabalo’s expense for lunch from the Court cafeteria. However, the Court finds Aikens’ fourth and sixth meal expenses and Cabalo’s dinner expenses on November 29 to be unreasonably high. Accordingly, the Court applies a reduction to these claimed expenses, capping reimbursement for each of these meals at $50 per person.

22 cc. Travel, Lodging and Parking 23 Finally, Aikens seeks $4,499.68 in travel expenses, as follows: (1) airfare to SFO $1,062.45; (2) fare to hotel from airport $42.94; (3) accessible train ticket for Plaintiff for trial $527.40; (4) taxi to court $12.00; (5) fare from court $11.98; (6) fare to airport from hotel $52.72; (7) airfare from SFO to DTW on November 30 $1,503.30; (8) hotel from 11/27 to 11/30 $1,222.89, and (9) airport parking $64.00. Ex. A to Aikens Decl. at 4; Ex. 2 to Supp. Aikens Decl.

1 Aikens’ travel and parking expenses to attend the trial will need to be incurred again for the continued trial. The Court grants Plaintiff’s request for reimbursement of Plaintiff’s third expense request, for accessible train tickets for Plaintiff to attend the trial. Although Plaintiff did not actually appear at trial on the first day, Plaintiff’s tickets were for December 3 and December 5, indicating that Plaintiff would appear only on the fourth day of trial. Because these travel arrangements reflect a decision by Plaintiff and her counsel, rather than simply a failure to attend trial, the Court grants this request.

8 The Court likewise grants Plaintiff’s request for reimbursement of the first and seventh expenses, for flights to and from San Francisco to attend trial. These expenses, totaling $2,656.75, appear unreasonable at first glance. Aikens confirmed, however, that both flights were in the airline’s economy-class “main cabin,” and that the expenses reflect the cost of flying shortly after Thanksgiving and of changing the return ticket on short notice due to the mistrial. See generally Hellenberg v. Ford Motor Co., No. 18-cv-2202 JM, 2020 WL 1820126, at *7 (S.D. Cal. Apr. 10, 2020) (disallowing expenses for first-class airfare when not expressly justified by Plaintiffs and discounting accordingly). Plaintiff’s Supp. Br. in support of Motion at 2, ECF No. 480. The Court thus finds these expenses reasonable, and grants Plaintiff’s request for them.

17 The Court finds the eighth expense, for three nights’ hotel stay, to be excessive and unreasonable. See, e.g., HRPT Properties Tr. v. Lingle, 775 F. Supp. 2d 1225, 1242 (D. Haw. 2011) (disallowing reimbursement for first-class airfare and luxury hotel expenses when not sufficiently justified by Plaintiffs). The Court reduces the amount for Plaintiff’s hotel to $864, or $288 per night, which reflects the U.S. General Services Administration’s maximum per diem lodging rate for San Francisco for October through December 2023. See U.S. General Services Administration Per diem files. FY 23 Per Diem Rates [Excel file], available at https://www.gsa.gov/travel/plan-book/per-diem-rates/per-diem-files.

25 The Court finds the remaining travel and parking expenses reasonable, and grants Plaintiff’s motion as to those expenses.

27 dd. Conclusion – Expenses amount of $5,699.04 in expenses, including $150 for service of process, $971.41 in expert witness fees, $436.84 in meal expenses, and $4,140.79 for travel, lodging, and parking, as detailed below.

Charge for Expense after 4 Date Activity Description Expense Reduction reduction 11/9/23 Service of Process Subpoena for Christian Nieto $75 — $75 11/9/23 Service of Process Subpoena for Shonoa Ruddick $75 — $75 6 Printing and 11/13/23 Delivery Fee Printing for Trial $8,326.11 $8,326.11 $0.00 7 Douglas Cross Fee from 12/8/23 Expert Fee 10/17/23–11/29/23 $1,942.82 $971.41 $971.41 11/27/23 Meal Airport meals $28.52 — $28.52 11/27/23 Meal Lunch prior to expert meeting $21.19 — $21.19 Food and snacks for week of 10 11/27/23 Meal trial $144.99 — $144.99 11/28/23 Meal Dinner at hotel $104.61 $54.61 $50 11 11/29/23 Meal Meal at courthouse $8.95 — $8.95 11/29/23 Meal Lunch at hotel $117.94 $67.94 $50 11/29/23 Meal Lunch at courthouse $33.19 — $33.19 Dinner (for both attorneys) at 11/29/23 Meal LihoLiho Yacht Club $312.17 $212.17 $100 14 11/16/23 Travel Flight to SFO on 11/27 $1,062.45 — $1,062.45 11/27/23 Travel Fare to hotel from airport $42.94 — $42.94 15 Accessible train ticket for 11/28/23 Travel Plaintiff for Trial $527.40 — $527.40 16 11/29/23 Travel Taxi to court $12 — $12 11/29/23 Travel Fare from court $11.98 — $11.98 17 11/29/23 Travel Fare to airport from hotel $52.72 — $52.72 11/20/23 Travel Flight from SFO to DTW $1,503.30 — $1,503.30 11/30/23 Lodging Hotel from 11/27 to 11/30 $1,222.89 $358.89 $864 19 11/30/23 Parking Airport parking $64 — $64 Total Expenses 20 Total Charges Total after for Expenses Reductions Reductions 21 $15,690.17 $9991.13 $5,699.04 B. Remaining Issues 24 The Court declines to separately analyze whether Howie should also be sanctioned pursuant to the Court’s inherent power, Civil Local Rules 1-4 and 11-4(a)(4), or California Rule of Professional Conduct 8.4. With respect to Plaintiff’s fees and expenses, the Court would not issue a greater amount of sanctions pursuant to those other bases than it is issuing under section 1927.

1 awarded under a lesser showing of wrongdoing than is required under section 1927. Therefore, || there is no utility in separately addressing them.

3 With respect to the Court’s expenses related to jury empanelment, Plaintiff argues in reply || that even if those expenses cannot be awarded under section 1927, they could likely be awarded under the Court’s inherent power. ECF No. 472 at 8-9 (citing United States v. Wallace, 964 F.2d 6 1214, 1218 (D.C. Cir. 1992)). The Court declines to reach that issue. Plaintiffs motion for sanctions did not seek the jury-related fees. Rather, those were solely the subject of the Court’s || Order to Show Cause, which invoked only section 1927, not the Court’s inherent power. ECF No. || 467.

10 The Court assumes for the sake of argument that under its inherent power it could sanction ll Howie’s client, SCMTD. However, the Court would not do so. Howie committed the |] misconduct, and there is no basis to attribute it to his client.

13 IV. CONCLUSION 14 For the reasons stated above, Plaintiffs motion for sanctions is GRANTED IN PART and 15 DENIED IN PART, and the Court’s Order to Show Cause is SUSTAINED IN PART and a 16 OVERRULED IN PART. Howie is SANCTIONED in the amount of $46,363.29, consisting of 17 $40,664.25 in attorney’s fees and $5,699.04 in expenses, payable to Plaintiff and her counsel.

18 IT IS SO ORDERED.

20 Dated: September 27, 2024 21 7 LU \ : Lj-~— 9 THOMAS S. HIXSON United States Magistrate Judge