Opinion
No. 2:13-cv-01484-GEB-DAD
03-30-2016
SCOTT JOHNSON, Plaintiff, v. KUO LIN, et al. Defendants.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS
Plaintiff Scott Johnson seeks attorney's fees under 42 U.S.C. § 12205 and Cal. Civ. Code § 52(a) for injuries he asserts he received when he encountered barriers at the T & R Taste of Texas eating establishment ("the restaurant"), owned by Defendants Kuo Lin and Chiu Lin (collectively, "Defendants"). The following issues were tried to the bench: Plaintiff's disability access claims alleged under California's Unruh Civil Rights Act (UCRA), Cal. Civ. Code §§ 51 et seq., and his request for injunctive relief sought under the Americans with Disabilities Act (ADA), 42 U.S.C. § 1201.
Plaintiff did not prevail on his ADA claims and therefore has not shown he is entitled to an award of attorney's fees under the ADA. Plaintiff did prevail on two of his UCRA claims and is therefore entitled to an award of reasonable attorney's fees under Cal. Civ. Code § 52(a).
I. DISCUSSION
Plaintiff seeks $21,335.00 in attorney's fees. Defendants argue this amount "is excessive and unreasonable," contending that Plaintiff has not justified each attorney fee rate he seeks and certain hours billed. (Defs.' Opp'n to Pl.'s Mot. for Attorney's Fees and Costs ("Opp'n") 1:24-26, ECF No. 50.) When determining the reasonableness of an attorney's fee request:
The court . . . follow[s] 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). . . . There is a strong presumption, however, that the lodestar amount is reasonable. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n. 4 (9th Cir. 2000).Johnson v. Wayside Prop., Inc., No. CIV. 2:13-1610 WBS, 2014 WL 6634324, at *2 (E.D. Cal. Nov. 21, 2014).
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, 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.
A. Hours Reasonably Expended
Plaintiff submits a "Billing Statement" itemizing the time spent by his attorneys—Mark Potter, Ray Ballister Jr., Phyl Grace, Christina Sosa, Amanda Lockhart, and Isabel Masanque. (Pl.'s Ex. 2 ("Ex. 2"), ECF No. 49-3.)
Defendants argue: "Plaintiff's billings . . . are . . . 'top heavy'" since more experienced attorneys performed work that could have been performed by less experienced associates. (Opp'n at 1:28.) However, Defendants have not shown justification for the court "to impose its own judgment regarding the best way to operate [Plaintiff's retained] law firm, []or to determine if different staffing decisions might have led to different fee requests." Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). Therefore, Defendants objection is overruled.
In particular, Defendants object to senior attorney Mark Potter's October 31, 2014 billing entry on the grounds that "it could have been done by less senior attorneys." (Opp'n at 2:5-6.)
1. Billings by Potter
Defendants object to Potter's billing of 3.3 hours on March 23, 2015 for the following tasks: "Reviewed the defense opposition to our MSJ; drafted the Reply Brief[.]" (Ex. 2 at p. 2.) Defendants argue that "[t]he Motion for Summary Judgment was denied." (Opp'n at 2:7-8.) Plaintiff replies in relevant part:
It seems that the defense is suggesting that [P]laintiff should not recover because the motion was unsuccessful. Aside from the fact that the defense would have benefited greatly if the motion had been granted and everyone spared the time and expense of trial, the argument lacks legal merit. Unless the motion was utterly frivolous, the plaintiff can expect that his attorney's fees will be reimbursed for good faith work, including a motion for summary judgment that sought to end the case without the need for trial.(Pl.'s Reply Br. ("Reply") 3:16-24, ECF No. 51.)
However, the referenced motion was not supported sufficiently to justify a fee award; therefore, this billing has not been shown to be reasonable and is DENIED. See generally Cabrales v. Cnty. of L.A., 935 F.2d 1050, 1053 ("a plaintiff who is unsuccessful at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney's fees even for the unsuccessful stage")(emphasis added).
Defendants also object to Potter's billing of 3.2 hours on September 4, 2015 for the following task: "Drafted the plaintiff's post trial briefing as directed by court[.]" (Ex. 2 at p 2.) Plaintiff replies:
The defense never explains what a reasonable amount would have been. But the argument lacks merit. It took 3.2 hours. It dealt with issues that the Court wanted further briefing over - issues that are somewhat nuanced - and the trial outcome hung in the balance. Spending 3.2 hours was both reasonable and fair.(Reply at 4:15-19.)
Plaintiff is correct. Therefore, Defendant has not shown that this billing is unreasonable.
2. Billings by Ballister
Defendants object to Ballister's billing of five (5) hours on August 23, 2015 for the following tasks: "Prepped case for Trial, drafted outlines of direct, cross, argument; prepared pocket briefs for anticipated[] issues[.]" (Ex. 2 at p. 4.)
Defendants have not shown that this billing is unreasonable.
Defendants next object to Ballister's seven (7) hours billed on August 25, 2015 for the following tasks: "Final [trial] prep, travel[ed] to (and from) and conducted the Trial today; notes to file afterward for the briefing." (Ex. 2 at p. 4.) Plaintiff replies:
Mr. Ballister billed a total of seven hours for both travel and trial time. Given that trial, itself, was almost four hours (not including time before and after in the courthouse), the defense never bothers to explain why this is an unreasonable entry or justify the request to strike the billing entry in its entirety.(Reply at 5:5-9.)
Defendants have not shown that this billing is unreasonable.
B. Reasonable Hourly Rate
"The number of hours reasonably expended on th[is] litigation," must be multiplied by a reasonable hourly rate in order to calculate the lodestar amount. "Determination of a reasonable hourly rate is not made by reference to rates actually charged the prevailing party[; i]n determining a reasonable hourly rate, the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation." Chalmers v. City of L.A., 796 F.2d 1205, 1210-11 (9th Cir. 1986)(citation omitted), amended on denial of reh'g, 808 F.2d 1373 (9th Cir. 1987). 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).
"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). "While disability access cases are a subset of civil rights practice, it would be naive to equate the level of skill required to litigate a routine disability access case with the level of skill required to successfully litigate a more complicated civil rights case raising novel or complicated constitutional issues." Wayside Prop., Inc., 2014 WL 6634324 at *6. 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 v. Stenson, 465 U.S. 866, 895 n. 11 (1984).
Plaintiff seeks the following hourly rates for his counsel: $350 for Potter and Ballister, $250 for Grace, and $200 for Lockhart, Sosa and Masanque. (Mot. at 3:3-4.)
Plaintiff submits a declaration from Mark Potter in support of these rates, in which he declares: he is the managing partner of the Center for Disability Access (CDA), the law firm retained by Plaintiff in this action; he has "devoted more than [ninety-five percent] of [his] practice to disability issues for more than [twenty-one] years," (Potter Decl. ¶¶ 2,6, ECF No. 49-2); and has litigated "over 2,000 disability cases." (Id. at ¶ 6.) Potter also declares: Ballister is an associate at CDA who has "been in practice for [twenty-nine] years" and "has focused exclusively on disability access cases" for the past nine years (id. at ¶ 7); and Grace is an associate at CDA with twenty years of experience and has maintained an exclusive disability access practice for the past eight years (id. at ¶ 8). Potter also avers that Lockhart is an associate at CDA who graduated in 2011 (id. at ¶ 9); Masanque is an associate at CDA who graduated in 2012 (id. at ¶ 10); and Sosa is an associate at CDA who graduated in 2011 (id. at ¶ 11).
Plaintiff also submits in support of the requested rates a declaration from attorney John D. O'Connor, asserted by Plaintiff to be his "attorney's fee expert." The O'Connor declaration concerns what O'Connor avers to be reasonable rates in "Northern California." O'Connor's supports this averment by referencing rates awarded in the San Francisco Bay Area legal community. "[H]owever, the relevant market here is . . . not [the San Francisco Bay Area, since i]t is without question that the rates in the nearby San Francisco legal community exceed those in this legal community." Wayside Property, Inc., 2014 WL 6634324 at *6. Further, Plaintiff also relies on the portion of the O'Connor declaration that utilizes what O'Connor characterizes as "the Laffey Matrix[, which] is maintained by the Department of Justice in Washington, D.C.[,] to determine the reasonable hourly rates for this case[; however, t]he suggested Laffey Matrix rate contemplates practice in the Washington, D.C. legal community and has been rejected as an adequate tool to assess market rates in this [legal community] ." Id. at *7 (citing Fitzgerald v. Law Office of Curtis O. Barnes, No. 1:12-CV-00071-LJO-GAS, 2013 WL 1627740 at *3 (E.D. Cal. Apr. 15, 2013), findings and recommendation adopted, 2013 WL 1896273 (E.D. Cal May 6, 2013)).
Lastly, O'Connor avers that he is "well aware of the rates charged by labor specialty firms such as the firm of Jackson Lewis, a nationwide labor and employment litigation firm, and Littler Mendelson, another employment and labor litigation firm. . . . [as well as] the rates of Downy Brand, . . . [and t]he rate charged by the partners [in this case] is below these rates." (O'Connor Decl. at ¶ 34.) "O'Connor does not suggest, however, that the 'labor specialty firms' or Downy Brand handle routine disability access cases or, even assuming they do, identify the rates charged to individual plaintiffs in those cases." Wayside Prop., Inc., 2014 WL 6634324 at *7. Plaintiff has "not cited a single a case from [this legal community] or provided an affidavit [from an attorney in this legal community] . . . that supports the rates [he] seek[s]." Id. at *8.
Notwithstanding Plaintiff' s failure to present sufficient evidence supporting the rates he seeks, "[d]istrict judges can . . . consider the fees awarded by other judges in the same locality in similar cases." Moreno, 534 F.3d at 1115. The decision in Wayside Property, Inc., 2014 WL 6634324 at *8, an Eastern District disability access case where Plaintiff sought attorney's fees billed by CDA attorneys, supports application of the following hourly rates: $300 for Potter, $260 for Ballister, $175 for Grace, and $150 for Lockhart, Sosa, and Masanque. See also Johnson v. Allied Trailer Supply, Civ. No. 2:13-1544 WBS EFB, 2014 WL 1334006, at *4-5 (E.D. Cal April 3, 2014) (holding that a $300 hourly rate for Potter and Ballister and a $175 hourly rate for Grace were reasonable rates in litigating a disability access case in this legal community).
In Wayside Property Inc., the court determined that it was previously mistaken in Allied Trailer Supply, 2014 WL 1334006, in believing that Ballister was a partner at CDA and therefore, Ballister's reasonable rate was reduced from $300 to $260. Wayside Prop., 2014 WL 6634324 at *8. --------
Accordingly, the lodestar in this case is $16,193.50, calculated as follows:
| Potter | 30.2 x $300 = $9,060.00 |
|---|---|
| Ballister | 15.1 x $260 = $3,926.00 |
| Grace | 2.9 x $175 = $507.50 |
| Lockhart | 1.7 x $150 = $255.00 |
| Sosa | 13.8 x $150 = $2,070.00 |
| Masanque | 2.5 x $150 = $375.00 |
| =$16,193.50 |
C. Costs
Plaintiff also seeks $5,827.90 in costs for investigation, filing fee, service costs, trial transcripts, and expert witness. (Ex. 2 at p. 1.) These costs are awarded to Plaintiff.
II. CONCLUSION
For the stated reasons Plaintiff is awarded $16,193.50 in attorneys' fees and $5,827.90 in costs. Dated: March 30, 2016
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge