NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVANGELINE RED and RACHEL No. 15-55760
WHITT, on Behalf of Themselves and All
Others Similarly Situated, D.C. No.
2:10-cv-01028-GW-AGR
Plaintiffs-Appellants,
v. MEMORANDUM *
KRAFT FOODS INC.; KRAFT FOODS
NORTH AMERICA; KRAFT FOODS
GLOBAL, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted February 15, 2017
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and MURPHY,** District
Judge.
Appellants Evangeline Red and Rachel Whitt appeal the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
entry of two orders denying in part their motions for attorneys’ fees under the
Consumer Legal Remedies Act (CLRA), Cal. Civ. Code § 1780(e), and
California’s private attorney general statute, Cal. Civ. Proc. Code § 1021.5. We
have jurisdiction under 28 U.S.C. § 1291, Am. Ironworks & Erectors, Inc. v. N.
Am. Constr. Corp., 248 F.3d 892, 897–98 (9th Cir. 2001), and affirm both fee
awards.
“We review the factual determinations underlying an award of attorneys’
fees for clear error and the legal premises a district court uses to determine an
award de novo.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1147–48 (9th
Cir. 2001) (citation omitted). “If we conclude that the district court applied the
proper legal principles and did not clearly err in any factual determination, then we
review the award of attorneys’ fees for an abuse of discretion.” Id. at 1148.
1. We affirm the district court’s initial award of $101,702.38 in attorneys’
fees and costs. The district court properly reduced appellants’ $3.3 million fee
request as grossly excessive in light of the very limited success appellants actually
achieved in their lawsuit. See Chavez v. City of Los Angeles, 224 P.3d 41, 54 (Cal.
2010) (holding that a reduced fee award is appropriate where a claimant achieves
only limited success). “[F]ees are not awarded for time spent litigating claims
unrelated to the successful claims, and the trial court ‘should award only that
amount of fees that is reasonable in relation to the results obtained.’” Id. at 53
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(quoting Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)).
Here, the district court did not clearly err in finding that appellants’ success
was very limited because they did not prevail on their primary claims, they failed
three times to certify a class, most of their claims failed as a matter of law, and
there was no liability finding. Further, the court properly found that the narrow
stipulated injunction did not cause appellees (collectively, Kraft) to stop using the
enjoined phrases on its packaging because Kraft had stopped using most of the
phrases before appellants’ lawsuit was filed. The court also found that the
stipulated injunction did not cause Kraft to adjust its ingredients, reformulate its
products, or change its business practices. Based on these factual findings, which
were not clearly erroneous, the district court did not abuse its discretion in
awarding fees only for the hours appellants reasonably expended in securing the
stipulated injunction, working on motions in which they succeeded, and bringing
their initial fee request.
2. The district court did not err in applying blended hourly rates of $550 for
partners and senior associates, $352 for junior associates, and $211.66 for law
clerks and paralegals. “There is no requirement that the reasonable market rate
mirror the actual rate billed.” Syers Props. III, Inc. v. Rankin, 172 Cal. Rptr. 3d
456, 463 (Ct. App. 2014). The blended rates used were reasonable averages
consistent with the prevailing market rates charged in similar cases within the
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Central District of California. See, e.g., POM Wonderful, LLC v. Purely Juice, Inc.,
No. CV 07-2633 CAS JWJx, 2008 WL 4351842, at *4 (C.D. Cal. Sept. 22, 2008).1
3. We also affirm the district court’s second fee award of $11,368.25. In
ruling on appellants’ renewed fee motion seeking $1.9 million, the district court
did not abuse its discretion in denying the duplicative fee requests it had already
considered in appellants’ initial fee motion. See Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000); C.D. Cal. L.R. 7-18. Moreover, the
district court properly reduced the excessive fees that appellants requested for
settling their individual claims and bringing their second fee motion, which was
almost identical to the first. See Van Gerwen v. Guar. Mut. Life Co., 214 F.3d
1041, 1047 (9th Cir. 2000). Lastly, the district court did not abuse its discretion by
imposing a negative multiplier of .75 to address counsel’s egregious and excessive
billing practices. See Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992);
Perez v. Safety-Kleen Sys., Inc., 448 F. App’x 707, 709 (9th Cir. 2011).
4. The district court provided adequate explanations for both its fee awards.
The court’s rationale was clear and it provided sufficient reasons to justify the
extent of the cuts ordered. See Masalosalo by Masalosalo v. Stonewall Ins. Co.,
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Because we conclude that the blended rates were proper, we need not
address whether appellants waived their right to challenge the blended rates. See
In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010)
(stating that waiver is a discretionary determination).
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718 F.2d 955, 957 (9th Cir. 1983). The district court was not required to specify
each charge that it found to be unreasonable. Gorman v. Tassajara Dev. Corp., 100
Cal. Rptr. 3d 152, 198 (Ct. App. 2009). “The essential goal in shifting fees . . . is
to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826,
838 (2011). As such, the district court “may take into account [its] overall sense of
a suit” in calculating a reasonable fee, and we “must give substantial deference to
[its] determinations, in light of ‘[its] superior understanding of the litigation.’” Id.
(quoting Hensley, 461 U.S. at 437).
5. Lastly, the district court properly construed the CLRA by applying the
statute’s fee-shifting provision liberally, as required under California Civil Code
section 1760. The court specifically cited section 1760 as the basis for awarding
anything at all to appellants and explained that, if not for the CLRA’s liberal
application, it would have found Kraft to be the prevailing party. On this record,
such a conclusion would not have been erroneous in the absence of section 1760.
Appellants shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).
AFFIRMED.
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