Case 3:15-cv-02287-BAS-NLS Document 405 Filed 09/28/23 PageID.18412 Page 1 of 58
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`CHARLES MATTHEW ERHART,
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`Case No. 15-cv-02287-BAS-NLS
`consolidated with
`15-cv-02353-BAS-NLS
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`ORDER GRANTING IN PART AND
`DENYING IN PART PLAINTIFF’S
`MOTION FOR ATTORNEYS’ FEES
`(ECF No. 384)
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`v.
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`BOFI FEDERAL BANK,
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`Defendant.
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`And Consolidated Case
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`In 2015, Defendant BofI Federal Bank terminated one of its internal bank auditors—
`Plaintiff Charles Matthew Erhart—after learning he reported information to the
`Government. Seven years later, after a winding journey, a jury found BofI violated the law
`and awarded Erhart $1.5 million.
`Erhart now turns to three statutes to recover $3 million in attorneys’ fees. He asks
`the Court to enhance the fee award, resulting in a grand total of $7.3 million. BofI responds
`with a stack of spreadsheets and a long list of arguments. The Bank contends the Court
`should deny the request or substantially reduce the requested fees.
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`The Court agrees Erhart is entitled to recover fees. That said, some of the hours his
`counsel spent will not be included in the lodestar. And the motion stumbles when it comes
`to justifying counsel’s hourly rates. Ultimately, the Court awards $2,405,559.20 in
`attorneys’ fees.
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`BACKGROUND1
`Erhart worked in BofI’s Internal Audit Department for approximately eighteen
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`months. The narrative Erhart presented throughout this case—and the one that prevailed
`at trial—is that he was an internal auditor in a turbulent corporate environment. Time and
`time again, Erhart battled against pressure from senior management as he discovered
`wrongful conduct. But when Erhart believed the events were hitting a flashpoint, his
`supervisor abruptly quit. Erhart then informed the Bank’s principal regulator of his
`findings. In the aftermath, BofI terminated and defamed Erhart, claiming he was
`incompetent at his job.
`Erhart later filed this lawsuit for whistleblower retaliation under state and federal
`law. Erhart’s initial complaint included ten causes of action and described over a dozen
`instances of believed wrongdoing at the Bank. His counsel also tipped off The New York
`Times, leading to a morning edition article about the lawsuit. BofI’s stock plummeted
`thirty percent, and the first of several securities class action lawsuits soon followed.
`The Bank responded by pulling out all the stops. Instead of waiting to file a
`counterclaim, the Bank brought another suit with eight claims under state and federal law.
`The Bank’s counternarrative claimed Erhart not only lacked a reasonable belief that BofI
`violated the law, but also wanted to “bring down the bank” and abandoned his job. The
`Bank quickly papered Erhart with a barrage of motions: a motion to dismiss and strike his
`complaint, a motion for a preliminary injunction, a motion for a determination that Erhart
`waived attorney-client privilege over certain documents, a motion for summary
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`1 The Court has summarized this dispute in a variety of orders. Except where noted otherwise,
`the Court draws these facts from the evidence presented at trial.
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`Case 3:15-cv-02287-BAS-NLS Document 405 Filed 09/28/23 PageID.18414 Page 3 of 58
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`adjudication of Erhart’s affirmative defenses to BofI’s claims, and a motion for spoliation
`sanctions.
`After denying BofI’s request for extraordinary relief, the Court consolidated the
`parties’ dispute while ruling on the first of several challenges to the pleadings. Over the
`next several years, the parties whittled the case down before trial. The Court dismissed
`Erhart’s California causes of action for violation of the Confidentiality of Medical
`Information Act, breach of the implied covenant of good faith and fair dealing, and
`intentional infliction of emotional distress. Then, at the summary judgment phase, the
`Court grappled with the core of Erhart’s lawsuit: his four whistleblower retaliation and
`wrongful termination claims. The Court held some of the wide-ranging factual predicates
`for these claims could not support liability as a matter of law, but most survived scrutiny.
`Then, in the run-up to trial, BofI abandoned one of its state law claims, and the Court
`eliminated another. Finally, during trial, the Court summarily resolved one of Erhart’s
`federal whistleblower retaliation causes of action.
`Although most of Erhart’s case reached the jury, one of the Court’s rulings limited
`his recoverable damages. The Court found Erhart’s counsel disregarded Federal Rule of
`Civil Procedure 26 by failing to provide any estimate of Erhart’s calculable damages
`throughout discovery. This ruling meant he could seek only emotional distress damages,
`reputational damages, and punitive damages at trial.
`Over the course of a three-week jury trial in spring 2022, the parties presented their
`competing narratives and intersecting claims. Erhart prevailed. The jury found BofI
`violated the Sarbanes-Oxley Act, California Labor Code section 1102.5, and California
`public policy when the Bank terminated him. (Jury Verdict 2–3, ECF No. 314.) In line
`with the Court’s damages ruling, the jury assessed Erhart’s “emotional distress or harm to
`his reputation” for these claims. (Id. 4.) The jury awarded him $1 million. (Id.) Erhart
`also prevailed on his California state law defamation claim, and the jury awarded him
`$500,000. (Jury Verdict 5–6.) The jury found BofI’s conduct warranted punitive damages
`under state law but deadlocked on the amount to award. (ECF No. 359.) The Court held
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`Case 3:15-cv-02287-BAS-NLS Document 405 Filed 09/28/23 PageID.18415 Page 4 of 58
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`a limited retrial on the punitive damages issue, and a second jury found punitive damages
`were not appropriate. (ECF No. 370.)
`Erhart now moves for $7.3 million in attorneys’ fees and $1.19 million prejudgment
`interest. (Mot., ECF No. 384-1.) The Court addresses the fee request here. The motion is
`fully briefed, including a sur-reply. (ECF Nos. 390, 394, 402.) Altogether, the parties’
`filings eclipse 1,000 pages, and the Court finds the motion suitable for determination on
`the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R.
`7.1(d)(1).
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`ANALYSIS
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`Entitlement to Fees
`I.
`The starting point is whether Erhart is entitled to recover his attorneys’ fees. He
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`prevailed on federal and state law claims. “In a pure federal question case brought in
`federal court, federal law governs attorney fees.” Disability L. Ctr. of Alaska, Inc. v.
`Anchorage Sch. Dist., 581 F.3d 936, 940 (9th Cir. 2009). “State law governing attorneys’
`fees can also apply to state law claims over which federal courts exercise supplemental
`jurisdiction.” Chicken Ranch Rancheria of Me-Wuk Indians v. California, 65 F.4th 1145,
`1148 (9th Cir. 2023). State law applies if it is substantive under the Erie doctrine and “the
`fee award is ‘connected to the substance of the case.’” Northon v. Rule, 637 F.3d 937, 938
`(9th Cir. 2011) (quoting Price v. Seydel, 961 F.2d 1470, 1475 (9th Cir. 1992)). Stated
`differently, “so long as ‘state law does not run counter to a valid federal statute or rule of
`court . . . state law denying the right to attorney’s fees or giving a right thereto, which
`reflects a substantial policy of the state, should be followed.’” Indep. Living Ctr. of S.
`California, Inc. v. Kent, 909 F.3d 272, 281–82 (9th Cir. 2018) (alteration in original)
`(quoting MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 1999)).
`Erhart contends three laws entitle him to recover attorneys’ fees: Sarbanes–Oxley,
`California Labor Code section 1102.5(j), and California Code of Civil Procedure section
`1021.5. (Mot. 1:22–24.) Federal law, of course, controls whether Erhart can recover fees
`under Sarbanes–Oxley. See Chicken Ranch, 65 F.4th at 1148. As for the two California
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`Case 3:15-cv-02287-BAS-NLS Document 405 Filed 09/28/23 PageID.18416 Page 5 of 58
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`statutes, these are substantive laws under Erie. They reflect substantial policies of the State
`and apply to Erhart’s successful state law claims brought under the supplemental
`jurisdiction statute. Cf. Indep. Living Ctr. of S. Cal., 909 F.3d at 282 (applying section
`1021.5 to state law cause of action removed under federal question statute after considering
`Erie principles). Hence, the Court will consider whether these state laws also entitle Erhart
`to fees. See Klein v. City of Laguna Beach, 810 F.3d 693, 701–02 (9th Cir. 2016); see also
`Chicken Ranch, 65 F.4th at 1151 (explaining “it is the nature of the claim on which a party
`prevailed (federal or state) that determines the law that applies (federal or state) to any
`request for attorneys’ fees”).
`A.
`Sarbanes–Oxley
`Erhart’s clearest path to recovering attorneys’ fees is under Sarbanes–Oxley’s anti-
`retaliation provision. Under federal law, litigants pay their own attorneys’ fees unless a
`statute or contract provides otherwise. Chicken Ranch, 65 F.4th at 1148. Sarbanes–Oxley
`contains such an exception. An employee who prevails under its anti-retaliation provision
`is entitled to recover “compensation for any special damages sustained as a result of the
`discrimination, including litigation costs, expert witness fees, and reasonable attorney
`fees.” 18 U.S.C. § 1514A(c)(2)(C). This language echoes other federal statutes that
`authorize reasonable attorneys’ fees for the prevailing plaintiff. See, e.g., 49 U.S.C. §
`20109(e)(2)(C); 31 U.S.C. § 3730(h)(2); 29 U.S.C. § 216(b).
`Erhart prevailed on his Sarbanes–Oxley anti-retaliation claim at trial. He is therefore
`entitled to recover reasonable attorneys’ fees under 18 U.S.C. § 1514A(c)(2)(C).
`B. California Labor Code Section 1102.5
`Erhart also seeks fees under California Labor Code section 1102.5. California has
`the same default rule: litigants pay their own attorneys’ fees with a panoply of statutory
`and equitable exceptions. Trope v. Katz, 11 Cal. 4th 274, 278 (1995). The law invoked
`here, Labor Code section 1102.5, is “California’s general whistleblower statute.” McVeigh
`v. Recology San Francisco, 213 Cal. App. 4th 443, 468 (2013).
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`When Erhart filed this case, Labor Code section 1102.5 did not include fee-shifting.
`The California Legislature amended the law as of January 1, 2021. A.B. 1947, 2019 Leg.
`(Cal. 2020). The statute now includes subsection (j), which provides: “The court is
`authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action
`for a violation of these provisions.” Cal. Lab. Code § 1102.5(j).
`Erhart prevailed at trial in 2022. He argues section 1102.5(j) applies because this
`case was not final when the legislature’s amendment became effective in 2021. (Mot.
`8:15–9:21.) BofI counters that section 1102.5(j) is inapplicable because statutes ordinarily
`apply prospectively. (Opp’n 21:14–22:9.)
`Neither party points to a California decision determining whether Labor Code
`section 1102.5(j)’s applies to cases pending at the time of amendment. BofI cites to a
`district court that concluded “no authority supports the provision’s retrospective
`application.” (Opp’n 21:14–22:9 (quoting Nikmanesh v. Wal-Mart Stores, Inc., No. SACV
`15-202 JGB (JCGx), 2022 WL 1837515, at *15 (C.D. Cal. Feb. 25, 2022)).) See also
`Bahra v. Cnty. of San Bernardino, No. EDCV 16-1756 JGB SPx, 2022 WL 6653533, at *5
`(C.D. Cal. Sept. 7, 2022). The district court reached that conclusion, however, after the
`plaintiff cited to “a hodgepodge of authority,” without any explanation, to suggest
`otherwise. Nikmanesh, 2022 WL 1837515, at *15 n.5. In contrast, Erhart identifies ample
`support in California law for his position that section 1102.5(j) applies here. (Mot. 8:15–
`9:21.)
`Erhart’s showing is persuasive. No doubt, under California law, the “general rule is
`that absent a clear, contrary indication of legislative intent,” courts “interpret statutes to
`apply prospectively.” USS-Posco Indus. v. Case, 244 Cal. App. 4th 197, 217–18 (2016).
`But this rule is a general one for good reason. “Fee and cost eligibility statutes” under
`California law “are a ‘special category within the general topic of the prospective or
`retroactive application of statutes’ subject to an ‘extensive line of authority.’” Id. (quoting
`Quarry v. Doe I, 53 Cal. 4th 945, 956 (2012)). Indeed, “the California Supreme Court and
`many, many Courts of Appeal have treated legislation affecting the recovery of costs,
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`including attorney fees, as addressing a ‘procedural’ matter that is ‘prospective’ in
`character and thus not at odds with” this presumption. Id. at 221.
`Two California Supreme Court cases—Stockton Theatres, Inc. v. Palermo, 47 Cal.
`2d 469 (1956), and Woodland Hills Residents Ass’n, Inc. v. City Council, 23 Cal. 3d 917
`(1979)—stand for the proposition “that in the absence of express legislative intent to the
`contrary, ‘a new statute authorizing an award of attorney fees’ or a statute ‘increasing or
`decreasing litigation costs, including attorneys’ fees’ applies to actions pending at the time
`of enactment.” USS-Posco Indus., 244 Cal. App. 4th at 220; see also K.M. v. Grossmont
`Union High Sch. Dist., 84 Cal. App. 5th 717, 739 (2022) (reasoning cases analyzing the
`retroactivity of attorneys’ fees statutes “remain distinct” from the caselaw assessing
`damages). “This is true even though the costs or fees at issue were incurred prior to the
`effective date of the new statute.” Reyes v. Beneficial State Bank, 76 Cal. App. 5th 596,
`616 (2022).
`BofI does not discuss this California authority. (Opp’n 20:14–22:9.) The Bank does,
`however, highlight a California Senate Judiciary Committee analysis of the bill amending
`section 1102.5. (ECF No. 390-26.)2 That bill both added fee shifting and adjusted the
`statute of limitations for whistleblower retaliation claims. The legislative history notes the
`bill “is silent about its effect on pre-existing claims.” (ECF No. 390-26.) That said, when
`one reads on, it is clear that this analysis is addressing the change to the statute of
`limitations, not the addition of fee-shifting under subsection (j). The committee’s analysis
`concludes the bill would not revive “claims based on incidents for which the existing period
`has expired, or will expire prior to enactment of this bill.” (Id.) Simply put, this legislative
`history lends little support to BofI’s position.
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`2 The Bank’s request for judicial notice of this report is granted. See Anderson v. Holder, 673
`F.3d 1089, 1094 n.1 (9th Cir. 2012) (“Legislative history is properly a subject of judicial notice.”); see
`also Anders v. Superior Ct., 192 Cal. App. 4th 579, 590 (2011) (considering similar report when analyzing
`legislative history of statute).
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`Given the California caselaw addressing similar fee statutes, and the lack of a
`response from BofI addressing this authority, the Court finds section 1102.5(j) applies.
`And although the conclusion may be different under federal law, section 1102.5 is a state
`statute, and state law controls its application here. See Northon, 637 F.3d at 938. The
`statute authorizes an award of attorneys’ fees to Erhart because this action was pending
`when section 1102.5(j) became effective. See, e.g., Woodland Hills, 23 Cal. 3d at 925;
`USS-Posco Indus., 244 Cal. App. 4th at 220; Reyes, 76 Cal. App. 5th at 616.
`C. California Code of Civil Procedure Section 1021.5
`Third, Erhart seeks fees under California’s Private Attorney General Statute, Cal.
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`Civ. Proc. Code § 1021.5. Under this provision, “a court may award attorneys’ fees to a
`successful party against one or more opposing parties” if the action “has resulted in the
`enforcement of an important right affecting the public interest” and several additional
`requirements are satisfied. Id.
`Section 1021.5 is “[a]n important exception” in California “to the American rule that
`litigants are to bear their own attorney fees.” Graham v. DaimlerChrysler Corp., 34 Cal.
`4th 553, 565 (2004). California enacted the provision “as a codification of the private
`attorney general doctrine of attorney fees developed in prior judicial decisions.” Maria P.
`v. Riles, 43 Cal. 3d 1281, 1288 (1987). This doctrine “rests upon the recognition that
`privately initiated lawsuits are often essential to the effectuation of the fundamental public
`policies embodied in constitutional or statutory provisions, and that, without some
`mechanism authorizing the award of attorney fees, private actions to enforce such
`important public policies will as a practical matter frequently be infeasible.” Woodland
`Hills, 23 Cal. 3d at 933. “Thus, the fundamental objective of the doctrine is to encourage
`suits enforcing important public policies by providing substantial attorney fees to
`successful litigants in such cases.” Riles, 43 Cal. 3d at 1289.
`Erhart is a successful party under the Private Attorney General Statute. He prevailed
`on his California claims for wrongful discharge in violation of public policy, violation of
`Labor Code section 1102.5, and defamation.
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`He must still satisfy section 1021.5’s remaining requirements to obtain a fee award.
`Cal. Civ. Proc. Code § 1021.5. These requirements are “established when (1) plaintiffs’
`action has resulted in the enforcement of an important right affecting the public interest,
`(2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the
`general public or a large class of persons, and (3) the necessity and financial burden of
`private enforcement are such as to make the award appropriate.” Millview Cty. Water Dist.
`v. State Water Res. Control Bd., 4 Cal. App. 5th 759, 768 (2016) (internal quotation marks
`omitted) (quoting Summit Media LLC v. City of Los Angeles, 240 Cal. App. 4th 171, 187
`(2015)). The party seeking fees under section 1021.5 has the burden “to demonstrate all
`elements of the statute.” Id. (citing Norberg v. Cal. Coastal Comm’n, 221 Cal. App. 4th
`535, 545–546 (2013)).
`Fees under Code of Civil Procedure section 1021.5 are not warranted here. First, as
`discussed above, Erhart is already entitled to seek fees under Labor Code section 1102.5.
`He succeeded on two other state law claims—wrongful termination in violation of public
`policy and defamation. Erhart’s wrongful termination claim could serve as a basis for an
`award of fees under the Private Attorney General Statute, but this claim was
`undistinguishable from his Labor Code section 1102.5 claim. Meaning, Erhart can already
`recover for the work done on these twin claims.
` Erhart’s remaining successful claim, defamation, does not plainly implicate section
`1102.5, and Erhart does not mention this claim in his moving papers. (See Mot. 6:14–7:5.)
`See Albin v. Trustmark Ins. Co., No. CV 13-5788 PSG (AGR), 2013 WL 12191722, at *14
`(C.D. Cal. Nov. 25, 2013) (reasoning a claim for attorneys’ fees under section 1021.5 for
`defamation fails as a matter of law).
`But even if there is some benefit to Erhart also being entitled to fees on this ground,
`the Court finds he does not carry his burden to show the requirements of section 1102.5
`are met. One missing requirement is that “the necessity and financial burden of private
`enforcement” must be “such as to make the award appropriate.” Cal. Civ. Proc. Code §
`1021.5.
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`This requirement examines whether there were “insufficient financial incentives to
`justify the litigation in economic terms.” Millview, 4 Cal. App. 5th at 768. An award under
`section 1102.5 is not warranted where “the plaintiff had a ‘personal financial stake’ in the
`litigation ‘sufficient to warrant [the] decision to incur significant attorney fees and costs in
`the vigorous prosecution’ of the lawsuit.” Id. at 768–69 (alteration in original) (quoting
`Summit Media, 240 Cal. App. 4th at 193–94). To illustrate, in Davis v. Farmers Insurance
`Exchange, 245 Cal. App. 4th 1302, 1310 (2016), the trial court rejected the plaintiff’s
`request for fees under section 1021.5, and the Court of Appeal affirmed on this issue. Id.
`at 1338. In discussing the financial burden inquiry, the court determined the plaintiff’s
`“reasonable expectation of financial benefits from the litigation was sufficient to motivate
`him to pursue the litigation.” Id. at 1329. It noted the plaintiff “sought over ten million
`dollars in damages for his allegedly wrongful discharge,” and “he expected to recover
`hundreds of thousands of dollars for improper wage deductions.” Id. at 1330. Thus, the
`court concluded “it was reasonable for the [trial] court to find that at every critical juncture
`[the plaintiff] expected a substantial financial recovery, and that this was sufficient
`motivation to pursue the case”—making a fee award under section 1021.5 inappropriate.
`Id.
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`Here, Erhart’s Motion does not brief the financial burden element, which dooms his
`request under section 1021.5. See Millview, 4 Cal. App. 5th at 773. Regardless, the Court
`notes there were adequate financial incentives here. Erhart sought millions of dollars in
`compensatory damages and millions more in punitive damages. He succeeded at
`recovering $1 million for his whistleblower retaliation claims, and he came within a hair’s
`breadth of a seven-to-eight figure punitive damages award. The Court is persuaded that at
`the critical junctures in this action, Erhart “expected a substantial financial recovery, and
`that this was sufficient motivation to pursue the case.” See Davis, 245 Cal. App. 4th 1302,
`1310. Consequently, Erhart is not entitled to recover fees under California’s Private
`Attorney General Statute.
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`II. Lodestar Calculation
`Erhart is entitled to recover fees under both federal and state law. When it comes to
`calculating his fee award, these laws are largely coextensive. California law permits the
`trial court to use the lodestar method to calculate a reasonable fee. E.g., PLCM Grp. v.
`Drexler, 22 Cal. 4th 1084, 1095 (2000). Fees under Sarbanes–Oxley are likewise
`determined under the lodestar method. See Roberts v. City of Honolulu, 938 F.3d 1020,
`1023 (9th Cir. 2019); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (“The
`standards set forth in this opinion are generally applicable in all cases in which Congress
`has authorized an award of fees to a ‘prevailing party.’”).3
`It is no surprise, then, that Erhart almost exclusively relies on federal decisions when
`proposing his lodestar. (Mot. 2:2–6:12; 9:23–15:2.) He has the burden on the fee motion.
`The Court thus takes the same approach and considers nuances of California law only
`where the parties’ arguments call for it. See Chaudhry v. City of Los Angeles, 751 F.3d
`1096, 1106 (9th Cir. 2014); see also Hiken v. Dep’t of Def., 836 F.3d 1037, 1046 (9th Cir.
`2016) (“[A] court is not required to ‘manufacture arguments’ on behalf of litigants.”).
`Determining the lodestar amount is a “two-step process.” Roberts, 938 F.3d at 1023
`(quoting Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016)). “First, a court multiplies
`the number of hours ‘reasonably expended on a case by a reasonable hourly rate.’” Id.
`(quoting Kelly, 822 F.3d at 1099). Then, the “court retains discretion to adjust the lodestar
`figure upward or downward based on a variety of factors ‘not subsumed in the lodestar
`figure.’” Id. (quoting Kelly, 822 F.3d at 1099).
`
`
`3 Aside from Erhart arguing fees under Sarbanes–Oxley are mandatory (Mot. 4:3–5), neither party
`suggests the standards used in decisions applying other federal fee-shifting statutes do not apply with
`equal force to this context. See Van Asdale v. Int’l Game, Tech., No. 3:04-CV-00703-RAM, 2011 WL
`2118637, at *6 (D. Nev. May 24, 2011) (rejecting the argument that the Supreme Court’s decision in
`Hensley and its progeny do not apply to Sarbanes–Oxley’s fee provision); Wooten v. BNSF Ry. Co., 387
`F. Supp. 3d 1078, 1107 (D. Mont. 2019) (importing the same standards when applying antiretaliation
`provision with identical language under the Federal Railroad Safety Act).
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`Litigants seeking fees have the “initial burden of production,” under which they
`“must ‘produce satisfactory evidence’ establishing the reasonableness of the requested
`fee.’” United States v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015)
`(quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). If this burden is met, “the court
`then proceeds to a factual determination as to whether the requested fee is reasonable.” Id.
`A. Reasonable Hours
`The lodestar calculation begins with assessing “how many hours were reasonably
`expended on the litigation.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir.
`2008). “Determining the number of hours reasonably expended requires ‘considering
`whether, in light of the circumstances, the time could reasonably have been billed to a
`private client.’” Vargas v. Howell, 949 F.3d 1188, 1194 (9th Cir. 2020) (quoting Moreno,
`534 F.3d at 1111); see also $28,000.00 in U.S. Currency, 802 F.3d at 1107–08 (“Hours not
`reasonably expended are those that are ‘excessive, redundant, or otherwise unnecessary.’”
`(quoting Hensley, 461 U.S. at 434)).
`Erhart claims 4,470 hours were reasonably incurred on this case. (Mot. 10:8–13;
`Gillam Decl. ¶ 37, ECF No. 384-2.) This total breaks down as follows: Erhart’s lead
`counsel expended approximately 1,581 hours, her associate spent 2,069 hours, their
`paralegals labored for 780 hours, and one additional attorney worked 40 hours. (Gillam
`Decl. ¶ 37.)
`BofI argues these hours are unreasonable and asks the Court to exclude 1,265 hours
`on five grounds. (Opp’n 7:23–14:19.) First, Erhart wrongly includes hours for work
`performed in other litigation. (Id. 8:6–2:9.) Second, there are numerous entries “for work
`that did not occur or did not occur on the dates claimed.” (Id. 9:3–10:7.) Third, Erhart
`cannot recover fees related to BofI’s claims. (Id. 10:21–12:7.) Fourth, fees are not
`recoverable for tasks related to Erhart’s defamation claim. (Id. 12:8–13:6.) And finally,
`there are various “other issues relating to the people who were doing the work, work done
`prior to the filing of the lawsuit, the narratives provided, and block billing.” (Id. 13:7–
`14:19.)
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`Although the Court will address BofI’s arguments, the Court is mindful “that the
`determination of fees ‘should not result in a second major litigation.’” Fox v. Vice, 563
`U.S. 826, 838 (2011) (quoting Hensley, 461 U.S. at 437). District “courts need not, and
`indeed should not, become green-eyeshade accountants.” Id. “The essential goal in
`shifting fees” to BofI “is to do rough justice, not to achieve auditing perfection.” See id.
`1.
`Related Claims
`
`Three of BofI’s five arguments strike at the same issue: whether Erhart can recover
`attorneys’ fees for work performed beyond his fee-shifting whistleblower retaliation
`claims. The parties clash over a state law doctrine on interrelated claims but do not discuss
`any federal caselaw. (Opp’n 10:8–21; Reply 4:26–5:6.)
`
`The bedrock case touching upon these issues is Hensley v. Eckerhart, 461 U.S. 424
`(1983). There, the Supreme Court analyzed 42 U.S.C. § 1988, which—like Sarbanes–
`Oxley—authorizes “a reasonable attorney’s fee.” 42 U.S.C. § 1988(b). And the issue was
`“whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on
`unsuccessful claims.” Hensley, 461 U.S. at 426.
`
`The Supreme Court observed that in some cases, plaintiffs bring “distinctly different
`claims for relief that are based on different facts and legal theories.” Hensley, 461 U.S. at
`434. In that circumstance, the time spent on a claim that is unsuccessful and unrelated to
`the fee-shifting claim should be excluded. Id. at 434–35. Congress’s “intent to limit
`awards to prevailing parties requires” that such a claim be treated as if it had been raised
`in a separate lawsuit, and “therefore no fee may be awarded for services on the unsuccessful
`claim.” Id. at 435.
`
`By comparison, “[i]n other cases the plaintiff’s claims for relief will involve a
`common core of facts or will be based on related legal theories.” Hensley, 461 U.S. at 435.
`“Much of counsel’s time will be devoted generally to the litigation as a whole, making it
`difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be
`viewed as a series of discrete claims.” Id. Further, where plaintiffs obtain “excellent
`results,” their counsel “should recover a fully compensatory fee.” Id.
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`The Ninth Circuit distills Hensley’s guidance into two prongs. First, “did the
`
`plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?”
`Ibrahim v. U.S. Department of Homeland Security, 912 F.3d 1147, 1172 (9th Cir. 2019)
`(en banc) (quoting Hensley, 461 U.S. at 434). This question “rests on whether the related
`claims involve a common core of facts or are based on related legal theories, with the focus
`on whether the claims arose out of a common course of conduct.” Id. (cleaned up) (citing
`Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003); Schwarz v. Sec’y of Health & Hum.
`Servs., 73 F.3d 895, 903 (9th Cir. 1995)). Second, did “the plaintiff achieve a level of
`success that makes the hours reasonably expended a satisfactory basis for making a fee
`award?” Id. (alteration omitted) (quoting Hensley, 461 U.S. at 434). If “the prevailing
`party achieved ‘excellent results,’” the court “may permit a full fee award—that is, the
`entirety of those hours reasonably expended on both the prevailing and unsuccessful but
`related claims.” Id. (citing Hensley, 461 U.S. at 435; Schwarz, 73 F.3d at 905–06).
`Defamation Claim
`i.
`The Court first considers BofI’s argument that Erhart “cannot recover an award for
`fees incurred in connection with his defamation claim” and