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holding that more than quadrupling hourly rate for trial testimony was unreasonable
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CIV. NO. 2:11-2230 WBS AC
08-28-2015
HOLLYNN D'LIL, Plaintiff, v. RIVERBOAT DELTA KING, INC.; CITY OF SACRAMENTO; OLD SACRAMENTO BUSINESS ASSOCIATION, INC.,; and DOES 1 through 50, Inclusive, Defendants.
MEMORANDUM AND ORDER RE: MOTION FOR ATTORNEY'S FEES AND COSTS
Plaintiff Hollynn D'Lil, a paraplegic, brought this action under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and analogous state laws against defendants Riverboat Delta King, Inc. ("Delta King") and the City of Sacramento arising out of physical obstacles she allegedly encountered while visiting the Delta King. Plaintiff separately settled all claims against both defendants, but was unable to agree on attorney's fees and costs with Delta King and now requests the court to determine the award.
I. Factual and Procedural History
Plaintiff filed this action on August 23, 2011 and asserted claims for (1) the public services provisions of the ADA, 42 U.S.C. § 12132, against the city; (2) section 504 of the Rehabilitation Act of 1973 against the city, 29 U.S.C. § 794; (3) the public accommodations provisions of the ADA against Delta King and the city, 42 U.S.C. § 12182; (4) California Health and Safety Code section 19955 against Delta King and the city; (5) California Government Code section 4456 against the city; (6) the California Disabled Persons Act ("CDPA") against Delta King and the city, Cal. Civ. Code § 54 et seq.; (7) the Unruh Civil Rights Act against Delta King and the city, Cal. Civ. Code § 51 et seq.; (8) California Government Code section 11135 against the city; (9) California Government Code section 12948 against Delta King and the city; and (10) state law negligence against Delta King and the city.
In a thirty-five-page exhibit attached to her Complaint, plaintiff alleged numerous barriers that prevented her from fully enjoying the Delta King. Plaintiff and the city of Sacramento reached a separate settlement in December 2014. In July 2014, Delta King moved for summary judgment limited to the issues of 1) the slope of the gangways; 2) vertical access to the fourth and fifth decks; 3) leveling of the cambered decks; 4) removal of raised thresholds; and 5) the configuration of the doors. The court denied Delta King's motion for summary judgment in its entirety. D'Lil v. Riverboat Delta King, Inc., 59 F. Supp. 3d 1001 (E.D. Cal. 2014). That Order more fully discusses the facts of this case.
As the trial date approached, the parties agreed to a bifurcated trial in which the first phase would be a bench trial, followed by a jury trial limited to three significant issues. The primary reason for bifurcating the trial was to render the case digestible for the jury and avoid having to instruct and inevitably confuse the jury about the intricacies of every alleged barrier and the corresponding federal and state access guidelines. The bench trial commenced on January 22, 2015, and after 4 days of trial, Delta King and plaintiff reached a settlement.
In the Consent Decree memorializing the settlement, the parties agreed that plaintiff "shall be deemed to be the ^prevailing party.'" (Consent Decree ¶ 24 (Docket No. 159).) To say that the parties disagree about the appropriate award of fees and costs is a gross understatement. Plaintiff seeks a minimum fee award of $789,760 and costs of $218,893, for a total award of $1,008,653 without even considering her requested enhancement. Delta King contends plaintiff has already been overcompensated in the amount of $74,294.43 and thus the court should award plaintiff absolutely no fees or costs. Together, the parties submitted no less than 4,470 pages of briefing, declarations, and exhibits to "aid" the court in determining the appropriate award.
Continuing with the tradition of "what appears to be petty bickering," D'Lil, 59 F. Supp. 3d at 1005 n.2, Delta King filed seventeen objections to Mr. Thimesch's declaration, primarily on the grounds that his statements are argumentative. (Docket No. 188-1.) Suffice to say, the court understands the difference between argument and evidence. In Mr. Thimesch's second declaration, plaintiff also raised many objections to Delta King's evidence. Because the court has not relied on any objectionable evidence, the parties' objections are overruled as moot.
II. Attorney's Fees
Pursuant to 42 U.S.C. § 12205, a federal court may award "a reasonable attorney's fee" to the prevailing party in an action under the ADA. 42 U.S.C. § 12205; see also Cal. Civ. Code §§ 52(a), 55 (authorizing an award of attorney's fees to a prevailing party in suits brought under California civil rights statutes). A plaintiff prevails "when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Here, defendant does not dispute that plaintiff was the prevailing party and is entitled to an award of reasonable attorney's fees under the Consent Decree, but argues that the fees plaintiff requests are exorbitant and unreasonable.
The court calculates a reasonable amount of attorney's fees by following a two-step process. First, the court determines the lodestar calculation--"the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Second, the court may adjust the lodestar figure "pursuant to a variety of factors." Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (internal quotation marks omitted); see also Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (enumerating factors on which courts may rely in adjusting the lodestar figure). There is a strong presumption that the lodestar amount is reasonable. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).
In determining the size of an appropriate fee award, the Supreme Court has emphasized that courts need not "achieve auditing perfection" or "become green-eyeshade accountants." Fox v. Vice, --- U.S. ---, 131 S.Ct. 2205, 2217 (2011). Rather, because the "essential goal of shifting fees . . . is to do rough justice," the court may "use estimates" or "take into account [its] overall sense of a suit" to determine a reasonable attorney's fee. Id. Awarded fees should be "adequate to attract competent counsel," without "produc[ing] windfalls to attorneys." Blum v. Stenson, 465 U.S. 886, 894-95 (1984).
A. Lodestar Calculation
1. Hours Reasonably Expended
Plaintiff submits an 837-page billing statement itemizing the time spent by attorneys Timothy Thimesch and Michelle Thimesch. (Docket No. 174.) Ms. Thimesch billed 38.7 hours, and defendant does not dispute the reasonableness of that time. Defendant hotly disputes the reasonableness of Mr. Thimesch's claimed 2,032.3 hours.
As an initial impression and based on its familiarity with this case, the court agrees that Mr. Thimesch's claimed 2,032.3 hours far exceed a reasonable number of hours expended on this case. The court questions not only the reasonableness of this amount of time, but also whether Mr. Thimesch's records accurately reflect the time he actually worked. Unfortunately, this is not the first time a court has questioned the accuracy of Mr. Thimesch's representations as to the hours he worked. In another case in this district, a judge reduced Mr. Thimesch's hours by 26.6 for time purportedly spent preparing a motion for summary judgment after the case had settled and several additional hours for attending a hearing that never occurred. See Riker v. Distillery, No. Civ. 2:08-00450 MCE JFM, 2009 WL 4269466, at *3 (E.D. Cal. Nov. 25, 2009).
Judge England ultimately vacated his decision in Riker after the parties settled attorney's fees on appeal. (See 2:08-CV-450 MCE-JFM, Docket No. 123.)
a. Block Billing
Attorneys are often criticized for "block billing" because it "makes it more difficult to determine how much time was spent on particular activities." Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). "Block billing is a practice where the amount of time spent by an attorney on each discrete task is not identified, but instead all hours spent during the course of a day on multiple tasks are billed together." Yeager v. Bowlin, No. Civ. 2:08-102 WBS JFM, 2010 WL 1689225, at *1 (E.D. Cal. Apr. 26, 2010). "The California State Bar's Committee on Mandatory Fee Arbitration has concluded that block billing 'hides accountability' and may 'increase time by 10% to 30%' by lumping together tasks." Id.
Mr. Thimesch's billings include significant block billing. For example, on August 22, 2014, Mr. Thimesch billed 14.6 hours for work on plaintiff's opposition to defendant's motion for summary judgment, describing his tasks only as "working on all opposition documents simultaneously." (Docket No. 174 at 479.) The following two days, Mr. Thimesch billed another 18.1 each day with the exact cursory description. (Id. at 580.) This pattern continued with 17.8 hours billed on August 25, 2014 and 19.2 hours billed on August 26, 2014 for "working on all opposition documents simultaneously." (Id. at 584-85.) Billing 87.8 hours over a five-day period justified only as "working on all opposition documents simultaneously" deprives the court of even the slightest bit if information "to determine how much time was spent on particular activities." Welch, 480 F.3d at 948. Another example of block billing occurred during trial when Mr. Thimesch billed 5 hours justified only by the explanation that he "called []Karl Danz regarding trial prep." (Docket No. 174 at 784.)
In preparing his opposition to defendant's motion for summary judgment alone, Mr. Thimesch billed approximately 226 hours, and most of this time is billed in large blocks with very little explanation. Although the summary judgment motion raised some difficult issues such that an opposition would necessitate more time than in a routine ADA case, plaintiff also submitted significant briefing on unnecessary issues. The court agrees with defendant that the total time expended in opposing the summary judgment motion was unreasonable. In light of the extensive block billing throughout the case, the inadequate explanations for the work undertaken in those entries, the court's familiarity with the issues raised in the summary judgment motion, and plaintiff's over-investment of time on issues that were irrelevant to the motion for summary judgment, the court will deduct 75 hours from Mr. Thimesch's billings.
This deduction is less than 4% of Mr. Thimesch's total claimed time, which is a very conservative estimate compared to the California State Bar's Committee on Mandatory Fee Arbitration's estimated 10% to 30% increase that results from block billing. Yeager v. Bowlin, 2010 WL 1689225, at *1.
b. Parsing of Related Tasks
In reviewing Mr. Thimesch's 837-page billing statement, which has 3,442 entries, another reason his timesheets likely overstate the time he expended is readily apparent. At the opposite extreme from block billing, a vast majority of Mr. Thimesch's billings divide related tasks so that time expended on what truly is one task receives two or more billing entries. For example, Mr. Thimesch repeatedly billed .1 of an hour to receive an email and, as a separate entry, an additional .1 of an hour to respond to that email. (See, e.g., id. at 45, 49, 58, 59, 64, 91, 133, 143, 158, 186, 216, 223, 789.) As another example, Mr. Thimesch billed .1 to review the court's minutes from the bench trial and an additional .1 to review the court's revised minutes. (See id. at 783.) Reviewing the initial and revised minutes together could not have taken 6 minutes total, but Mr. Thimesch managed to bill 12 minutes for this simple task. Because most entries are divided even when a task is entirely related, the average time entry for all of Mr. Thimesch's entries is .35, or 21 minutes. (Second Thimesch Decl. ¶ 32 (Docket No. 197-1).)
While this approach may initially seem like an adequate response to block billing criticisms, it is similarly subject to abuse. It is commonly understood that attorneys round up time in their billing entries so that a 4-minute task would be billed at .1 of an hour (6 minutes). When every task is parsed into separate billing entries, the attorney receives the benefit of each minute that was not spent working, but was simply added from rounding up. Although these extra minutes may seem miniscule, they can make a significant impact on the overall time billed when, as in this case, the billing statement has 3,442 entries. If 65% of the entries received the benefit of only one extra minute from rounding up, the total extra time would equal approximately 37 hours. Given the incredible number of entries billed at .1 of an hour that likely received the benefit of more than one minute from rounding up, the court finds that this is a conservative estimate of the amount of time overstated due to separating related tasks and rounding up each entry. The court will therefore deduct 37 hours from Mr. Thimesch's billings.
The court recognizes that Mr. Thimesch did not bill "attorney time" in every billing entry. The extraordinary number of entries, however, makes it impractical and unreasonably burdensome for the court to determine how many entries actually bill attorney time. The court also recognizes that many of Mr. Thimesch's entries are billed in increments even lower than 6 minutes. Even with these entries, the added benefit from parsing the entries and rounding up is undeniable.
c. Bench Trial
Throughout the four days of the bench trial, the court observed Mr. Thimesch spend several hours on issues that were either undisputed, irrelevant, or were supposed to be relegated to the second phase of trial before the jury. The court repeatedly advised Mr. Thimesch to avoid duplication and save any questions relevant to the jury phase or both phases for the second phase. (See, e.g., Jan. 27, 2015 Tr. at 347:6-348:15.) To exclude this wasted time during trial and in preparation for it, the court will deduct 5 hours from Mr. Thimesch's billings.
d. Work on Lawson's Unrelated Claims
Mr. Thimesch also represented William Lawson, who visited the Delta King and allegedly experienced barriers that the plaintiff in this case did not. Mr. Thimesch mentioned joining Mr. Lawson in this case as the trial approached, but never sought to do so and, if he had, would have had difficulty overcoming the late filing of any motion to amend. Although Mr. Thimesch contends that the time expended with Mr. Lawson should be included because plaintiff intended to call Mr. and Mrs. Lawson as witnesses, the court will exclude entries that do not appear from their descriptions to have any relation to trial preparation. To the contrary, they appear to be repeated communications with Mr. Lawson about and research and work done in contemplation and settlement of his potential case. Most of the entries even identify Mr. Lawson, not plaintiff, in the client column. Because Mr. Lawson was not a plaintiff in this case, the fees attributable to his threatened lawsuit and settlement cannot be assessed against defendant in this case. Based on the court's independent review of the billings to exclude time attributable to Mr. Lawson's potential case and settlement of his claims, the court will deduct 19.9 hours from Mr. Thimesch's billings.
e. Travel Time
Mr. Thimesch maintains his office in his home in Walnut Creek and billed 143.9 hours for travel time from Walnut Creek to Sacramento. Judges in this district have repeatedly held that it is unreasonable for attorneys who routinely try cases in this district but maintain offices elsewhere for their own convenience to shift their travel costs to their adversary. See Riker, 2009 WL 4269466, at *3; Martinez v. Longs Drug Stores, Inc., No. Civ. 2:03-1843 DFL CMK, 2005 WL 3287233, at *5 (E.D. Cal. Nov. 28, 2005). A primary reason for this limitation is that a fee-paying client would consider any added costs of retaining an out-of-town lawyer and could either negotiate a reduced cost for travel or elect to hire local counsel. Martinez, 2005 WL 3287233, at *5. Although Mr. Thimesch represents that he has now decided to cease his practice in this district, he has filed 40 cases in this district, and the plaintiff in this case brought 9 of those cases. In light of Mr. Thimesch's history of practice in this district, it is not reasonable to make defendant shoulder the increased cost of his travel to Sacramento just because Mr. Thimesch has chosen to live in Walnut Creek. Defendant concedes, however, that one hour per trip to Sacramento on non-trial days would be reasonable because that is generally the maximum time local counsel would charge for travel time and that all of Mr. Thimesch's travel time on trial days is reasonable. The court will therefore deduct 106.9 hours from Mr. Thimesch's hours.
f. Clerical Tasks
As the Ninth Circuit has explained, "[i]t simply is not reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney employed by her could perform at a much lower cost." Davis v. City & County of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), vacated in part on denial of reh'g, 984 F.2d 345 (9th Cir. 1993); see also Bakewell v. Astrue, No. Civ. 3:10-01525-JE, 2013 WL 638892, at *3 (D. Or. Jan.9, 2013) ("[C]osts associated with clerical tasks are typically considered overhead expenses reflected in an attorney's hourly billing rate, and are not properly reimbursable."); accord Johnson v. Allied Trailer Supply, No. Civ. 2:13-1544 WBS, 2014 WL 1334006, at *2 (E.D. Cal. Apr. 3, 2014) (citing Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)).
Mr. Thimesch generally appears to recognize that he cannot seek reimbursement for clerical tasks as he often indicated "clerical" or "paralegal" in many of his billing entries and accounted for that time in separate columns for which he does not seek reimbursement. In reviewing his billings, however, the court noticed that at least one entry designated as "clerical" and involving a clerical task appears to have inadvertently been billed as attorney time. (See Docket No. 174 at 538.)
Defendant also objects to tasks, such as preparing subpoenas, that should not have been billed as attorney time. For example, on May 24, 2012, Mr. Thimesch described his work as "drafted []a 215-page discovery package consisting of notices of deposition, requests to produce, interrogatories, request for admission, and 5 subpoenas; revision to final." (Id. at 50.) He then billed 5.3 attorney hours, 1.3 paralegal hours, and .5 clerical hours. (Id.) The court agrees with defendant that the calculated attorney time on these primarily routine tasks overstates the true attorney time and, based on the description, was comprised of more than 30 minutes of clerical time. Mr. Thimesch also billed attorney time when he "logged and paid a litigation expense" on at least seven occasions, billing 1.4 for these clerical tasks. (See id. at 51, 52, 740.)
Other similar entries, such as receiving a fax regarding a subpoena and receiving emails to continue a deposition, are also clerical tasks that should not be billed at an attorney rate. (See, e.g., id. at 56, 156, 536.) On several occasions, Mr. Thimesch also solicited advice and sample filings from other attorneys. Although this practice is not questionable, his time to simply "receive[]" sample documents back from other attorneys and "preserve" them to the "case notebook" are clerical tasks. (See id. at 406.) In fact, Mr. Thimesch consistently and extensively bills his time to "preserve" his research and work to the "case notebook." (See, e.g., id. at 325, 391.) The court will therefore deduct 7 hours to account for attorney time billed for clerical tasks.
g. Lack of Billing Judgment
"Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley, 461 U.S. at 434 (internal quotation marks and citation omitted). Here, the court cannot fathom that, upon receiving Mr. Thimesch's billings, a fee-paying client would submit payment without objection or even termination of the attorney-client relationship. A client surely would not expect to pay Mr. Thimesch approximately $56 for every voicemail he leaves, text message he sends, or email he receives. Even assuming it has become the standard practice to bill for these tasks, attorneys must exercise billing judgment before submitting the bill to their client, and most attorneys would exclude or limit such offensive charges. Not only is it clear that Mr. Thimesch did not exercise judgment in finalizing his billings in this case, he had no incentive to do so because he was never going to submit the bill to his client.
The time billed for phone calls made during trial illustrate the lack of efforts made to meaningfully review the billing. From the first day of trial on January 22, 2015 and through January 26, 2015, Mr. Thimesch logged entries for twenty-four phone calls, totaling 2.1 hours. On one occasion, Mr. Thimesch billed .25 of an hour to call Karl Danz when his billings indicate that he merely "left [a] message to return call regarding trial prep." (Docket No. 174 at 784.) Surely, his voice message did not total 15 minutes and Mr. Thimesch meant to bill less time. This apparent clerical error underscores the court's finding that Mr. Thimesch's lengthy billings were not adequately reviewed. Although this error may be readily apparent, many errors would be less obvious and it is not feasible for the court to review all 3,442 entries to catch even the obvious errors. The court has no reason to believe that Mr. Thimesch labored to ensure the accuracy of his billings, especially because he lacked the same incentive to do so as an attorney submitting a bill to a client.
In light of the lack of billing judgment apparent through the excessive entries for voicemails, text messages, and merely receiving emails or correspondences and the court's finding that Mr. Thimesch did not closely review his 837-page billing to correct inadvertent errors, the court will deduct 20 hours from Mr. Thimesch's time.
h. Extent of Plaintiff's Success
The Supreme Court has instructed that "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees." Hensley, 461 U.S. at 440. "Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee." Id. On the other hand, in a case with claims that "involve a common core of facts or [are] based on related legal theories," it is "difficult to divide the hours expended on a claim-by-claim basis." Id. at 435. In those cases, "the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. In such cases, "a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised." Id. at 440.
The Ninth Circuit has "applied Hensley's degree of success principles to a variety of fee-shifting statutes, including . . . Americans With Disability Act claims." Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d 1114, 1119 (9th Cir. 2006). In ADA cases such as this, a single claim may allege the existence of numerous "unrelated and distinct" barriers that are "premised on different sections of the ADA Accessibility Guidelines to determine liability." Kalani v. Nat'l Seating & Mobility, Inc., No. Civ. 2:13-00061 JAM CK, 2014 WL 3956669, at *4 (E.D. Cal. Aug. 13, 2014) (internal quotation marks and citation omitted). When a plaintiff prevails only on a limited number of barriers, courts have reduced the plaintiff's award of attorney's fees in light of the limited success of the litigation. See, e.g., id. (reducing plaintiff's fee award by 90% when, of the 39 alleged barriers, plaintiff prevailed on only 2, defendants prevailed on 16, and 21 were mooted). This type of reduction makes sense only when the court can identify and compare the total barriers at issue and the barriers successfully remediated through the litigation.
Here, however, the parties' assessments of the barriers at issue and the success plaintiff obtained through the Consent Decree are best described as ships passing in the night. Both sides attempt to tally the barriers at issue at the time of trial and those remediated through the Consent Decree and then quantify the degree of plaintiff's success. According to plaintiff, 54 barriers went to trial and the Consent Decree corrected 196 barriers, thus plaintiff "achieved an astounding 360% of the relief that went to trial." (Pl.'s Reply at 1:23-24.) Defendant, on the other hand, contends that only 5 barriers went to trial and the Consent Decree corrected 1/2 of 1 of those barriers and thus calculates plaintiff's success at 10%. (See Def.'s Opp'n at 4:10-14.) The true percentage still lies only in the eyes of the beholder.
The fact that the parties still cannot even agree as to the barriers that were at issue at the time of trial only underscores the frustration the court experienced with this case when attempting to decipher a manageable way to try this case before a jury.
With the exception of three significant issues, the parties agreed the court would decide all remaining issues. The Stipulated Bifurcation Order articulated the issues for the jury as:
a. Whether the lack of vertical (wheelchair) access to the fourth and fifth levels of the Delta King are a violation of law.(Stipulation and Order to Bifurcate at 2:2-10 (Docket No. 107).) The parties did not itemize the issues for the bench trial because, as the court understood it, the bench trial involved numerous discrete barriers and a determination as to whether they complied with the applicable standards. These barriers were identified in plaintiff's Barrier Matrix. When the bench trial commenced and during the four days it dragged on, neither party seemed to know whether all of the barriers in the Matrix remained in dispute. Instead, plaintiff's lead witness tediously walked through the Barrier Matrix like a maze that would somehow be understood at the end.
b. Whether, after 1989, an "alteration" to the Delta King occurred which triggered application of ADAAG or Title 24 standards.
c. Whether providing (wheelchair) vertical access to the fourth and fifth levels of the Delta King is "readily achievable."
As defense counsel explained at one of the Pretrial Conferences and the court understood at the time of trial, whether the jury found that an alteration or "triggering modification" had been completed affected what standards controlled the alleged barriers addressed during the bench trial. (See Jan. 7, 2015 Tr. at 4:16-6:7.)
The court recognizes that defendant mooted claims based on some of the barriers in plaintiff's initial Matrix by bringing the barrier at issue into compliance during the early stages of litigation. The Supreme Court has rejected the "catalyst theory" under the ADA and a plaintiff may not recover fees when a defendant voluntarily remediates barriers "without a corresponding alteration in the legal relationship of the parties." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001). Defendant recognizes, however, that plaintiff's billings render it impossible to excise time spent on barriers that were mooted.
When the parties cannot agree on a manageable breakdown of the barriers at issue at the time of settlement, reducing any award for limited success under on a barrier-by-barrier basis does not make sense. Moreover, one of the primary benefits of the Consent Decree was relieving the parties and the court from having to decipher the relevance and ultimate merits of the fifty-three barriers in plaintiff's Matrix. (See Docket No. 138.) The court will not now forgo this significant benefit of the Consent Decree and attempt to distill what could never be articulated at trial. Cf. Hensley, 461 U.S. at 437 ("A request for attorney's fees should not result in a second major litigation.").
Plaintiff's calculation of her success also has apparent flaws. For example, plaintiff includes 113 barriers attributable to the potential related case that Mr. Thimesch contemplated filing on behalf of Mr. Lawson. Although defendant may have agreed to settle Mr. Lawson's potential claims from his "unrelated incident" at Delta King as part of a global settlement agreement, (First Thimesch Decl. ¶ 5 (Docket No. 181)), Mr. Lawson was not a plaintiff in this case and the alleged barriers he encountered were thus not at issue. Any award of fees in this case cannot compensate plaintiff's counsel for time expended or results obtained in relation to potential claims by an individual who was not a party to this case. Excising only the results plaintiff attributes to Mr. Lawson, plaintiff's own assessment quickly drops from a 360% success to a 153% success.
It is also not possible to assess plaintiff's success at or even near 100% because there are significant barriers litigated in this case that will remain unremediated or were remediated only under the "readily achievable" standard. For example, two of the five barriers at issue in defendant's motion for summary judgment were the "leveling of cambered decks" and the "configuration of the doors." D'Lil, 59 F. Supp. 3d at 1005. Although plaintiff defeated defendant's motion as to those barriers, she did not ultimately prevail in obtaining defendant's agreement to level the decks or widen all of the guestroom doors. Nor did plaintiff succeed on the issue of whether the Delta King was altered and thereby subject to the more demanding accessibility requirements. For example, while plaintiff obtained vertical access to the fourth and fifth decks through a "portable lift/stair crawler device," (Consent Decree ¶ 15.b), she concedes that the lift does not comply with the current ADA Design Standards or the California Building Code because it requires assistance.
Whether the Delta King was altered was central to the case because, if it was altered, the ADA mandates that the altered areas comply with the newer and more demanding ADA Design Standards. See generally id. at 1006 (explaining that the ADA requires (1) removal of all barriers where removal is "readily achievable" and (2) for newly constructed or alterations to existing facilities, that the construction or alteration comply with the Design Standards in place at the time of construction or alteration).
At the same time, however, it is disingenuous for defendant to argue, as it emphatically does, that it offered to remediate all barriers under the "readily achievable" standard as of February 25, 2013 and that plaintiff's fees should thus cease as of that date. In its February 25, 2013 settlement offer, defendant identified the "elevator or lift access to the fourth and fifth decks" and "'roll-in' showers in the two 'accessible' rooms" as two of the four remaining barriers. (Post Decl. Ex. B (Docket No. 188-5) (emphasis added).) Defendant stated, "The law doesn't require these changes . . . . Removal of these five barriers (at least as proposed by plaintiff) is not readily achievable." (Id.) In the Consent Decree, plaintiff ultimately obtained some form of vertical access and one roll-in shower. (See Consent Decree ¶¶ 15.a, 15.b.) The parties disputed whether providing any vertical access was "readily achievable" at the time of trial and, through a lift, plaintiff prevailed in establishing that access was readily achievable.
Overall, plaintiff unquestionably retracted some of her demands in order to reach a settlement with defendant. Quantifying a percentage of success, however, is almost impossible in light of the parties' irreconcilable views of the case and the seemingly moving target as to the barriers actually at issue. As an extremely conservative estimate, and taking into account deductions already made for block billing and inefficient trial time, the court finds that plaintiff expended at least 25 hours in opposing defendant's motion for summary judgment and performing site inspections and 7 hours preparing to go to trial on significant issues on which she ultimately did not prevail. The court will therefore deduct 32 hours from Mr. Thimesch's time to account for time expended on proving that the Delta King was altered, that the cambered decks should be leveled, that more than two doors should be reconfigured, and that two roll-in showers should be provided.
i. Time Spent Preparing Plaintiff's Reply
Mr. Thimesch also added 50 hours to his total time to account for time expended in replying to defendant's opposition to this motion, which he indicates is less than the 56.3 hours he actually expended. Although Mr. Thimesch attributes this duration of time to defendant's lengthy opposition, he neglects to mention that his unwieldly billings and motion were what prompted that length. Nor does Mr. Thimesch's explanation that he expended over 50 hours "in connection with the reply" sufficiently explain how he spent that time. Taking into account all of these considerations, the court finds that 20 hours was a reasonable amount of time to expend on the reply and will therefore deduct 30 hours from Mr. Thimesch's billings.
j. Off-Set of Fees Paid by the City of Sacramento
Defendant also argues that 81.95 hours should be excluded because they are attributable to time Mr. Thimesch expended on separate claims against the city. At an hourly rate of $310, this would equal $25,404.50 in fees. It is undisputed that the city has already paid Mr. Thimesch $370,000 in fees as part of a settlement with plaintiff. Because the court will off-set the total award by this amount, it is unnecessary to deduct the additional 81.95 hours as they can be viewed as part of the $370,000.
k. Total Hours
With the aforementioned deductions of 332.8 hours, the total time remaining is 1,699.5 hours. The court's overall impression is that this is still an extraordinary number of hours and pushes the envelope of reasonableness. Given the unique issues in this case, however, the court cannot conclude that it was necessarily unreasonable for Mr. Thimesch to complete the investigations, research, and discovery he did. The court therefore finds it reasonable for Mr. Thimesch to be compensated for 1,699.5 hours.
2. Reasonable Hourly Rate
The court must multiply the reasonable hours expended in this litigation by a reasonable hourly rate to calculate the lodestar amount. To determine the reasonableness of the hourly rates claimed, the court looks to "the prevailing market rates in the relevant community," Blum, 465 U.S. at 895, "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). The burden is on the party seeking fees "to produce satisfactory evidence . . . 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 895 n.11.
a. Availability of Local Counsel
Both of plaintiff's attorneys practice primarily in the Northern District and seek hourly rates of $560. Mr. Thimesch recognizes that $560 per hour exceeds the prevailing market rate in the Sacramento legal community, but argues that $560 per hour is the prevailing rate in the Bay Area and the court should calculate plaintiff's fees under the rates in that locality.
In general, "the relevant community is the forum in which the district court sits." Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). As a narrow exception, "rates outside the forum may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case." Id. (internal quotation marks omitted) (citing Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)); accord Rosales v. El Rancho Farms, No. Civ. 1:12-01934 AWI JLT, 2015 WL 4460918, at *23 (E.D. Cal. July 21, 2015).
Describing this case as a "high-risk" section "55/303" case Mr. Thimesch argues that there is a "complete lack of other attorneys practicing in the Eastern District handling" such cases. (Pl.'s Mem. at 6 (Docket No. 179).) Based on his "intimate[ ] familiar[ity]" with the ADA plaintiff's bar, regular meetings with the same group on a semiannual basis, as well as "a survey [he] conducted on Pacer of Eastern District filings," Mr. Thimesch "certifie[s] that there are no firms outside the bay area handling Section 55/303 cases." (First Thimesch Decl. ¶ 95.) Mr. Thimesch further asserts that, because the Eastern District is "unattractive for handling" ADA cases for numerous reasons, he and his "handful of Section 55/300 [sic] colleagues" have "drastically limited" their Eastern District practice. (See id. ¶¶ 96-98.)
"Section 55" refers to section 55 of the California Civil Code, (see Compl. ¶ 75), which provides for injunctive relief to remedy a violation of several enumerated California statutes. "Section 303" refers to section 303 of the ADA, or 42 U.S.C. § 12183, (see Compl. ¶ 58), which, in summary, provides that for newly constructed facilities or for alterations made to existing facilities, facilities are required to be "readily accessible to and useable by individuals with disabilities," § 12183(a)(1)-(2). In describing this case as a "section 55/303 case," Mr. Thimesch attempts to distinguish the building modifications he sought from more routine ADA cases that Mr. Thimesch describes as seeking only readily achievable modifications.
If Mr. Thimesch and his handful of colleagues have drastically limited their ADA practice in the Eastern District, then someone has stepped in to pick up the slack because there is certainly no shortage of ADA cases in this district. As to Mr. Thimesch's other complaints about litigating ADA cases in this district, they are unfounded and incorrect. Mr. Thimesch complains that the "atmospherics and low hourly fee rates typically awarded" make this district an "exceedingly unattractive market for handing [sic] cases." (Id. ¶ 96.) He further faults this district for "provid[ing] considerable advantages to opponents" and for its "lack of a settlement procedure." (Id.)
The court is unsure what advantages Mr. Thimesch thinks opponents have in litigating ADA cases in this district. To the extent that Mr. Thimesch's assessment may be construed as suggesting bias on the part of the judges of this court, it is unwarranted and borders on offensive. The court's general experience with ADA cases in this district is that the plaintiffs almost invariably prevail. Surely the court did not give defendant an advantage in this case when it denied its motion for summary judgment in its entirety. The Eastern District also offers early mediation and settlement conferences through its free Voluntary Dispute Resolution Program, see E.D. Local R. 271, and recently began referring ADA cases for mandatory early settlement conferences with a magistrate judge. That Mr. Thimesch is dissatisfied with this district's prevailing rate is one thing, but it does not justify painting a false picture of ADA litigation in the district.
In seeking the narrow exception providing for rates outside of the district, the court would also expect Mr. Thimesch to provide evidence other than his own opinion to show that there was not a single local attorney qualified and available to take this case. Cf. Blum, 465 U.S. at 895 n.11 (emphasis added) ("[T]he 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."); Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987); Bd. of Trs. v. Core Concrete Const., Inc., No. Civ. 11-02532, 2012 WL 380304, at *6 (N.D. Cal. Jan. 17, 2012).
For example, the Ninth Circuit affirmed the award of an out-of-district fee when the fee applicant provided "numerous declarations of San Francisco and Sacramento attorneys which directly support their contention that Sacramento attorneys and law firms with the requisite expertise and experience to handle this type of complex institutional prison reform litigation were unavailable." Gates 987 F. 2d at 1405; see also L.H. v. Schwarzenegger, 645 F. Supp. 2d 888, 894 (E.D. Cal. 2009) (applying an out-of-district rate for a "complicated [case] requiring expertise in class action litigation, civil rights litigation, and youth law" because plaintiff "tendered evidence, " including supporting declarations from nine other attorneys, that there were no Sacramento firms with the experience, capability, and willingness to undertake such a suit).
Similarly, in Horsford v. Board of Trustees, a state appellate court found that Bay Area rates should have been awarded when the plaintiff explained his seven unsuccessful attempts in retaining local counsel. 132 Cal. App. 4th 359, 398 (2005). To corroborate this declaration, plaintiff in that case submitted declarations from several local civil rights lawyers stating that they had turned down plaintiff's request to serve as counsel, as well as another declaration explaining the reasons for local counsel's reluctance to take a case against the particular defendant. Id.
In stark contrast to the evidence in those cases, Mr. Thimesch submitted only his opinions as to the unavailability of local counsel. Mr. Thimesch seems to assume that this case necessitated a lawyer from a suburb of Oakland because not a single attorney in the local community could have handled it. Sacramento is not exactly Mayberry RFD. It is the seat of state government and a major metropolitan area with a robust and sophisticated bar. That hourly rates are generally lower in Sacramento than the Bay Area is more likely attributable to the reduced cost of doing business in Sacramento, not the lack of experience or expertise of the bar.
A higher cost of doing business in the Bay Area likely stems from the increased cost of maintaining an office there. Mr. Thimesch, however, does not appear to have any increased cost of doing business in Walnut Creek because it seems he maintains his office in his residence without any support staff. His overhead therefore is likely less, not more, than the typical lawyer maintaining an office in Sacramento.
Even if the court accepts Mr. Thimesch's representation that there are no lawyers in Sacramento who currently maintain a "section 55/303 practice," this does not necessitate hiring a lawyer outside of the Sacramento area. Seeking building modifications under the ADA and analogous state statues may, as Mr. Thimesch believes, require a harder fight than seeking only "readily achievable" modifications. It does not, however, necessarily require substantially greater expertise and legal acumen, especially if counsel hires a slew of experts as Mr. Thimesch did. More importantly, through the Consent Decree in this case, Mr. Thimesch achieved relief more akin to what would be accomplished in a routine case under the "readily achievable" standard. Plaintiff may have obtained some concessions from defendant because she sought building modifications, but she did not achieve the heart of the modifications she fought to impose. Mr. Thimesch's value as a lawyer in this case thus did not turn on his "section 55/303" expertise. Mr. Thimesch has simply made no showing that the complexities or dynamics of this case were of such a level that local counsel could not or would not have handled it.
Mr. Thimesch also indicates that most counsel are reluctant to pursue building modifications under section 55 because the mandatory award of fees for the "prevailing party" applies regardless of which party prevails. See Jankey v. Song Koo Lee, 55 Cal. 4th 1038, 1047 (2012) (contrasting the mandatory award of fees "to all prevailing parties, including prevailing defendants" under section 55 with the ADA's discretionary award of fees for prevailing defendants only if the claims were frivolous). Although at oral argument Mr. Thimesch suggested he bore this risk, the court assumes that any award of fees if defendant had prevailed would have been against Mr. Thimesch's client, not him. Regardless of who would bear responsibility for an award of fees, Mr. Thimesch has not shown that local counsel would have been unwilling to represent plaintiff in this case because of that risk.
In light of the lack of evidence before the court and the court's own familiarity with local counsel and the expertise necessary to litigate this case, the court is not persuaded that there was not a single qualified local counsel or counsel from a nearby community that charges rates consistent with those in Sacramento who would have been willing and able to handle this case. Accord Lema v. Comfort Inn Merced, No. Civ. 1:10-00362 SMS, 2014 WL 1577042, at *5 (E.D. Cal. Apr. 17, 2014) (awarding Mr. Thimesch a rate based on the prevailing rates in the Eastern District); see also Knox v. Chiang, No. Civ. 2:05-02198 MCE CKD, 2013 WL 2434606, at *6 (E.D. Cal. June 5, 2013) (concluding that an affidavit from another attorney opining it is "doubtful that any (perhaps one or two) local Sacramento attorneys would be willing to take on and pursue such a case . . . does not demonstrate that local counsel was unavailable"). Accordingly, Mr. Thimesch should be awarded attorney's fees at the prevailing market rate in Sacramento.
b. Prevailing Rate in Sacramento
The court must now determine the reasonable rate in Sacramento for similar work performed by attorneys of comparable skill, experience, and reputation. Chalmers, 796 F.2d at 1210-11. "The hourly rate for successful civil rights attorneys is to be calculated by considering certain factors, including the novelty and difficulty of the issues, the skill required to try the case, whether or not the fee is contingent, the experience held by counsel and fee awards in similar cases." Moreno v. City of Sacramento, 534 F.3d 1106, 1114 (9th Cir. 2008).
1. Timothy Thimesch
Mr. Thimesch has 25 years of experience and has handled section "55/303 cases" since 1994. (First Thimesch Decl. ¶¶ 91, 99.) He founded his own practice in 2000 and has successfully litigated cases achieving building modifications to provide disabled access to numerous institutions such as banks, hotels, recreational facilities, and theaters. (See id. ¶ 106.)
In Sacramento, judges have recently determined that the current prevailing rate for experienced attorneys handling routine disability access cases is $300. See Loskot v. Annie's Panda Garden, No. Civ. 2:13-00213 JAM JEM, 2015 WL 2235521, at *2 (E.D. Cal. May 12, 2015) (awarding an hourly rate of $300 to an attorney with 38 years of experience in an ADA case that was "not complicated"); Johnson, 2014 WL 1334006, at *6 (finding an hourly rate of $300 to be reasonable for attorneys with twenty and twenty-nine years of experience in a routine disability access case).
The court in Loskot indicated that it had considered attorney Thomas E. Frankovich's experience and reputation in finding his reasonable hourly rate, but the opinion does not indicate Mr. Frankovich's years of experience. The California State Bar website indicates that Mr. Frankovich was admitted to the practice of law in June 1977 and thus had 38 years of experience at the time of the Loskot decision.
Mr. Thimesch's experience is consistent with attorneys awarded $300, which is the higher end of the prevailing rate for routine ADA cases. From the court's general experience with ADA attorneys awarded $300 per hour, Mr. Thimesch handled this case at an equal or even better level. This case was also more complicated and necessitated more research than a routine ADA case. See, e.g., Moreno, 534 F.3d at 1114 (explaining that the complexity of a case is relevant in determining the prevailing hourly rate). Neither plaintiff nor defendant have provided any evidence or cited authority discussing the prevailing market rate in Sacramento for an experienced attorney handing a non-routine ADA case. Defense counsel in this case charged defendant only $250 per hour, which is significantly less than recent awards to attorneys with similar experience in routine ADA cases.
Defendant cites cases such as Riker, along with declarations of Charles Coyne and Laurence Berman, to argue that the reasonable rate for an experienced ADA attorney in the Eastern District is $250. 2009 WL 4269466, at *2. Although this rate is the hourly fee defense counsel charged in this case, the court must consider rates awarded in the last two years. See Bell v. Clackamas County, 341 F.3d 858, 869 (9th Cir. 2003) (holding that the district court abused its discretion by relying on market rates that were in effect more than two years before the time the attorney worked).
In Sacramento, "[a] rate of $400 is generally reserved for complicated civil rights cases litigated by attorneys with thirty or more years of experience." Loskot, 2015 WL 2235521, at *6 (internal quotation marks and citations omitted); see also, e.g., Deocampo v. Potts, No. Civ. 2:06-1283 WBS CMK, 2014 WL 788429, at *9 (E.D. Cal. Feb. 25, 2014) (awarding $400 hourly rate to attorney with "thirty-five years of legal experience" and "record of high-profile representations in civil rights matters"); Lehr v. City of Sacramento, No. Civ. 2:07-1565 MCE GGH, 2013 WL 1326546, at *4 (E.D. Cal. Apr. 2, 2013) (awarding $400 per hour to a "highly qualified civil rights attorney with over 40 years of relevant litigation experience" in a complex class action). Although civil rights practice is a broader category than disability access practice, reasonable hourly rates in civil rights cases are instructive in determining the reasonable hourly rate for ADA cases. See, e.g., Luna v. Hoa Trung Vo, No. Civ. 1:08:1962 AWI SMS, 2011 WL 2078004, at *4 (E.D. Cal. May 25, 2011) (using rate set in a prior "fully contested civil rights" case as a reference point for determining the applicable rate for an ADA case).
Here, while this case was not a routine ADA case and arguably merits slightly more than $300, Mr. Thimesch did not present himself to be a highly experienced trial lawyer. For example, Mr. Thimesch repeatedly tried to use defendant's statement of undisputed facts that was submitted in support of its motion for summary judgment as evidence at trial. (See Jan. 22, 2015 Tr. at 61:17-65:5.) The court also had to explain to Mr. Thimesch why motions in limine would be unnecessary during a bench trial. (See Jan. 7, 2015 Tr. at 11:7-16.)
While the court does not dispute that Mr. Thimesch has garnered significant ADA expertise in his twenty-five years of practice, at times he also seemed to struggle with the issues in this case. He did not appear to come into this case with a strong understanding of the more complex issues that were unique to this case. Even in his area of expertise, Mr. Thimesch's billings show that he relied heavily on experts to determine the applicable federal and state access requirements. These observations are similar to a recent assessment of Mr. Thimesch by another judge in this district: "Despite Mr. Thimesch's enthusiastic account of his qualifications, the Court has observed nothing in his presentation and management of this case that would rank him above or below the median fee." Lema, 2014 WL 1577042, at *5. In that case, which was in Fresno, the court awarded Mr. Thimesch $300 per hour. Id.
Since Mr. Thimesch states in his declaration that, with the exception of a few non-disability access cases, he practices exclusively in section "55/303" cases, (see First Thimesch Decl. ¶ 100), the court assumes Lema was also a section "55/303" access case that is comparable to the present case. --------
Mr. Thimesch also argues that a higher rate than the prevailing rate for routine ADA cases is merited because he sought building modifications and did not rely on the easier "readily achievable" standard. Mr. Thimesch has not shown, however, that greater expertise is necessary to seek building modifications. As previously explained, most of the remediations plaintiff achieved are akin to those achieved under the readily achievable standard and thus any expertise gained from trying building modification cases did not significantly enhance plaintiff's recovery in this case. Any increased work necessitated by a case seeking building modifications is also compensated through the greater number of hours expended on the case.
With all of these considerations in mind, the court finds the prevailing market rate in Sacramento for this case may slightly exceed the higher end of a routine ADA case because this case raised unique issues. At the same time, however, Mr. Thimesch neither displayed an expertise requiring a significantly higher rate than $300 nor showed that his expertise substantially increased plaintiff's success in this case. The court therefore finds that a reasonable fee for Mr. Thimesch in this non-routine ADA case is $310 per hour.
2. Michelle Thimesch
Plaintiff likewise requests a rate of $560 per hour for Ms. Thimesch. Ms. Thimesch has over 25 years of transactional experience, including experience related to tax transfers and tax investment vehicles. (See Michelle Thimesch Decl. ¶ 1 (Docket No. 173).) For this case, Ms. Thimesch conducted transactional research related to preservation easements and appeared at three mediations in 2015. (See id. ¶¶ 2-3.)
Ms. Thimesch has not submitted any evidence identifying the prevailing market rate in Sacramento for a transactional attorney of similar skill and experience. Nor has she explained whether she maintains her own practice or works as an associate for Mr. Thimesch. See Johnson, 2014 WL 1334006, at *6 (discussing whether an attorney is a partner or associate when determining the reasonable rate). Plaintiff has failed to satisfy her burden of showing that her requested hourly rate is in line with those prevailing in the community, and this could be fatal to her fee request. See Schultz v. Ichimoto, No. Civ. 1:08-526 OWW SMS, 2010 WL 3504781, at *8 (E.D. Cal. Sept. 7, 2010) ("If the prevailing party fails to meet this standard, the fee request is reduced or excluded altogether."). The court nonetheless will award Ms. Thimesch $275 per hour in light of her duration of experience and the limited role she served in this case.
Accordingly, the lodestar in this case is $537,487.50, calculated as follows:
Timothy Thimesch 1699.5 x $310 = $ 526,845.00
Michele Thimesch 38.7 x $275 = $ 10,642.50
TOTAL ATTORNEY'S FEES = $ 537,487.50
Over half a million dollars in attorney's fees for a case that necessitated opposing one motion for summary judgment, several site inspections, and a four-day bench trial is generous to say the least. Without doubt, it is "adequate to attract competent counsel." Blum, 465 U.S. at 894-95. Although the court questions whether the awarded fee gives Mr. Thimesch a "windfall[]," id., there is a "strong presumption that the lodestar amount is reasonable," Fischer, 214 F.3d at 1119 n.4, and the court will therefore adhere to it.
B. Costs
Federal Rule of Civil Procedure 54(d)(1) and Local Rule 292(f) govern the taxation of costs to losing parties, subject to limits set under 28 U.S.C. § 1920. See 28 U.S.C. § 1920 (enumerating taxable costs). While costs taxable under § 1920 and Local Rule 292(f) are more limited, the ADA authorizes a court to award "reasonable . . . litigation expenses[] and costs" to a prevailing party. 42 U.S.C. § 12205; accord Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). "The Ninth Circuit has stated that out-of-pocket expenses, although not normally taxable as costs, may be recovered as part of an attorney's fee award . . . if they represent costs normally charged to the client." Pac. W. Cable Co. v. City of Sacramento, 693 F. Supp. 865, 874 (E.D. Cal. 1988); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 624 n.1 (2001) (noting that the award of litigation expenses and costs in § 12205 was modeled after § 1988 and the Court has "interpreted these fee-shifting provisions consistently across statutes"). For example, "because the term 'litigation expenses' normally encompasses expert witness fees, [the Ninth Circuit has held] that the statutory provision provides direct authority for the award of expert witness fees." Lovell, 303 F.3d at 1058.
Here, plaintiff seeks litigation expenses and costs in the amount of $218,890. Although defendant does not dispute that plaintiff is entitled to recover reasonable litigation expenses and costs as the prevailing party, it disputes the reasonableness of plaintiff's requested costs and litigation expenses. The court finds that Mr. Thimesch has adequately justified his costs for trial exhibits, service, court costs, Westlaw charges, and deposition costs. (See Second Thimesch Decl. ¶¶ 87-88, 90-94.)
1. Meals
With the exception of meals during trial, defendant objects to numerous expenses for meals consumed during the course of Mr. Thimesch's work on this case. Although some attorneys may charge clients for meals under certain circumstances and with the client's consent, the court agrees that it is unreasonable to assess the cost of these meals against the losing party. Regardless of whether he was working on this case or not, Mr. Thimesch and his experts would have to eat and his meals did not advance plaintiff's case in any way. The court will therefore deduct $1,184.83 from Mr. Thimesch's taxable expenses. (See Berman Decl. ¶ 52 (itemizing the meals expensed) (Docket No. 188-2).)
2. Hotel Expenses
Mr. Thimesch seeks reimbursement for numerous hotel expenses. Defendant does not object to expenses for Mr. Thimesch's hotel stay during trial. When rooms at the Delta King were booked in order to complete inspections, the court also finds these expenses reasonable because defendant has not indicated that it would have provided plaintiff with unrestricted access to guest rooms for similar durations without charge. (See Second Thimesch Decl. ¶¶ 89.c, 89.d, 89.f, 89.g.)
On August 1, 2012, Mr. Thimesch argues it was reasonable for him and Karl Danz (one of plaintiff's many experts) to stay in a hotel overnight because they concluded a pre-mediation conference that day and had a settlement conference the next day. Mr. Thimesch's billings, however, reflect that the pre-mediation conference concluded at 5:30 p.m. and the settlement conference did not commence until the afternoon on the following day. (See Docket No. 174 at 78-79.) Although Mr. Thimesch might have determined that an overnight stay was preferable for him, it was neither necessary nor a reasonable litigation expense. Mr. Thimesch's lives approximately 70 miles from the Delta King and this courthouse. This is no greater distance than many people commute every day. Because the court has already determined that Mr. Thimesch should not be reimbursed for travel from Walnut Creek, overnight stays for Mr. Thimesch's convenience and to avoid fees for travel time are not reasonably taxed against defendant. The court will therefore deduct $1,304.73 for hotel expenses for Mr. Thimesch's or his expert's convenience. (See Second Thimesch Decl. ¶¶ 89.a, 89.e; Pl.'s Ex. 325 at 4-5, 39, 223, 287.)
3. Expert Witness Fees
a. Mr. Attwood
Barry Attwood, plaintiff's lead expert who testified for most of the bench trial, indicates that his expenses and fees for this case were $86,002.56. (Docket No. 325 at 470.) Mr. Attwood's trial testimony was central to plaintiff's case, and Mr. Thimesch has adequately explained the necessity of his attendance at various events throughout the litigation. The court agrees with defendant, however, that the time he billed in assisting Mr. Thimesch prepare the opposition for summary judgment and draft jury instructions is more akin to work one would expect a lawyer to perform and, assuming it was appropriate work for an expert like Mr. Attwood, the amount of hours billed were excessive when considered in light of the hours Mr. Thimesch billed for the same work. The reasonableness of the time expended is also difficult to assess because, although Mr. Attwood's bill is similar to that of an attorney, he has significant entries that are block billed without adequate descriptions. Through Mr. Attwood's trial testimony, the court found that he was knowledgeable about the intricacies of the ADA, but despite his expenditure of almost 100 hours preparing his Matrix and reports, the Matrix had numerous errors. In light of all of these considerations, the court will deduct $10,000 from Mr. Thimesch's expenses.
The court also questions the reasonableness of requiring defendant to pay Mr. Attwood's flat fee of $3,500 for expert testimony at trial when he has already billed for every minute he spent preparing for trial and the court did not hold full trial days. The first day of trial lasted less than five hours and the second and third days lasted less than three hours each. On the two days when Mr. Attwood testified for less than three hours, his normal rate of $250 per hour sky-rocketed to over $1,166 per hour when calculated in light of his $3,500 flat fee. Because Mr. Attwood seeks to bill similar to an attorney, with entries for every phone call and email, it is reasonable for his fee for trial testimony to be taxed against defendant at his hourly rate of $250, not an exorbitant flat fee. Moreover, because the court's own calendar dictated the limited trial days, defendant should not be punished for Mr. Attwood having to testify over the course of several days. The court will therefore deduct $7,750 from Mr. Thimesch's expenses to account for Mr. Attwood's unreasonable trial testimony fees.
b. Mr. Danz
Plaintiff also hired Karl Danz, a contractor, as an expert witness and incurred $30,797.27 in fees for his services. Although defendant complains that Mr. Danz duplicated Mr. Attwood's efforts, plaintiff has sufficiently explained how Mr. Attwood's primary purpose was to identify barriers under the ADA and Mr. Danz's primary purpose was to propose modifications and determine the costs of those modifications. Although the parties settled before Mr. Danz testified, this distinction is consistent with the representations Mr. Thimesch made at trial regarding Mr. Danz's anticipated testimony. While defendant also objects to the travel time for Mr. Attwood and Mr. Danz, defendant's own expert was not located in Sacramento and defendant has not identified experts with similar experience in Sacramento. The court therefore will not deduct Mr. Danz's fee.
c. Mr. Cole
Plaintiff's next expert was David Cole, an independent marine consultant. The court agrees with defendant that this expert was unnecessary and unreasonable because, by October 2012, defendant had unequivocally admitted that the authority of the United States Coast Guard and other maritime regulations had ceased "before or during 1984-1989" when the Delta King was restored to a hotel. (Post Decl. Ex. G at 3 (Docket No. 188-6).) Plaintiff needlessly pressed forward on this issue at summary judgment as well. See D'Lil, 59 F. Supp. 3d at 1010 n.5 ("Plaintiff repeatedly argues that Delta King is no longer a 'boat.' Although Delta King points out how it is similar to a boat in many respects, it does not argue that it is a 'boat' or is exempt from the ADA as a 'boat.'"). The court will therefore deduct $1,000 from Mr. Thimesch's expenses because it was not reasonable to hire a marine consultant.
d. Mr. Reynolds
Although defendant similarly objects to plaintiff's marine architect as unnecessary, his testimony focused on the access infrastructure and aided plaintiff in prevailing at summary judgment. See id. at 1009. The court therefore finds that plaintiff was reasonable in seeking his expertise.
e. Mr. Lerner
Next plaintiff seeks reimbursement for services by Arnie Lerner. From the redacted consulting services agreement plaintiff submitted, the court cannot decipher what services Mr. Lerner actually provided. (See Pl.'s Ex. 325 at 76-77.) Mr. Lerner, who was not listed as a potential witness for trial in the Final Pretrial Order, seems to have replicated any services provided by Mr. Attwood and Mr. Danz. Because plaintiff never intended to call Mr. Lerner as an expert at trial and his services appear duplicative of experts plaintiff had already hired, the court will deduct Mr. Lerner's fee of $1,500 from Mr. Thimesch's expenses.
f. Dr. Blanck
Plaintiff's next expert was Dr. Peter Blanck who addressed "what equality means to persons with disabilities." (Second Thimesch Decl. ¶ 123.) Although Dr. Blanck's testimony and purpose likely overlapped with Mr. Attwood, plaintiff emphasizes that it was necessary to have an expert on this issue who was a "believable witness that the jury could relate to." (Id.) While Dr. Blanck's report was not necessary to plaintiff's success at summary judgment, the court did reference it in its decision. See D'Lil, 59 F. Supp. 3d at 1015 ("A trier of fact could also find that being able to hear a live band playing on a higher deck is not equivalent to being able to watch the band and partake in the live music experience. These findings would be consistent with the opinion of plaintiff's expert, Peter Blanck, Ph.D., that the alternate seating and ability to hear the live music does not offer an equivalent accommodation and is stigmatizing for disabled patrons."). Overall, the court understands Mr. Thimesch's desire to have a witness the jury could relate to on these less than tangible issues, but agrees with defendant that the work likely duplicated that of Mr. Attwood. The court also agrees with defendant that it was unreasonable for Dr. Blanck to expend 10 hours at $500 per hour preparing for his 1-hour deposition. In light of the unnecessary duplication and excessive time spent preparing for his deposition, the court will deduct $3,500 from Mr. Blanck's $10,000 fee.
g. Mr. Finklea and Mr. Ebert
Mr. Thimesch justifies expenses for Dan Finklea and Scott Ebert on the grounds that he has a "long history with [them] in assisting at inspections and in investigations" and "utilization of their skills when possible reduced the higher fees I would have faced if I had instead involved Atwood and Danz." (First Thimesch Decl. ¶ 142.) For the inspection on July 16, 2013, however, Mr. Attwood and Mr. Thimesch also attended the inspection, (see Docket No. 174 at 506; Pl.'s Ex. 325 at 463), thus Mr. Finklea's attendance was unnecessary. The court will therefore deduct $1,350.50 for Mr. Finklea's charges for that inspection.
Mr. Ebert works for Ebert Enterprises, Inc., which does business as My PC Partners. His bills indicate only that he served as a "technician" for the inspections and provided "legal and tech assistive services." (Pl.'s Ex. 325 at 472.) The court is at a loss in determining what expertise or services he offered to the case. Although Mr. Thimesch now says Mr. Ebert was not going to testify at trial, Mr. Thimesch identified him as witness in the Final Pretrial Order. (See Docket No. 108 at 9.) Mr. Thimesch now explains that Mr. Ebert served as a legal assistant at trial, but Mr. Thimesch has not sought to recover his fees by showing his reasonable number of hours and reasonable fee. Even if the court treated Mr. Ebert as a legal assistant, the cursory description in the bill for a block billed total of 52.5 hours could not pass muster under the lodestar analysis. The court will therefore deduct his fees of $7,537.50 from Mr. Thimesch's requested expenses.
Similarly, because Mr. Ebert has not adequately accounted for his time as either an expert witness or legal assistant and his contribution to the case remains unclear, the court will deduct the $664.59 expensed for his hotel room during trial. (Pl.'s Ex. 325 at 405, 411.)
III. Total Award
With deductions for unreasonable litigation expenses and costs of $35,792.15, the total litigation expenses and costs the court will tax against defendant is $183,097.90. The total award of attorney's fees and costs together is $720,585.40, to which the $370,000 in fees and costs paid by the city must be off-set, for a total award of $350,585.40.
The hearing on this motion was set for August 24, 2015 at 2:00 p.m. Although both defense counsel and defendant's representative appeared for the hearing, plaintiff did not appear because of his calendaring error. To provide plaintiff with the opportunity for oral argument, the court reset the hearing for the following day. Mr. Thimesch agreed at oral argument that his award of fees should be reduced to compensate defendant for appearing at the originally scheduled hearing. The court will therefore deduct $750 (3 hours at defense counsel's hourly rate of $250) to account for the two attorneys and one representative who attended the hearing on behalf of defendant.
IT IS THEREFORE ORDERED that plaintiff's motion for attorney's fees be, and the same hereby is, GRANTED in part. Defendant is directed to pay $349,835.40 in attorney's fees, litigation expenses, and costs to Mr. Thimesch. Dated: August 28, 2015
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE