Michael Rocca v. Den 109 LP et al

Filing 78

ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES AND COSTS 74 by Judge Otis D. Wright, II: The Court awards Plaintiff attorneys fees in the amount of$38,002.50 ($25,290 associated with the proceedings before this Court and$12,712.50 associated with his successful appeal) and litigation costs and expenses in the amount of $9,296.81 for a total award of $47,299.31. (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL ROCCA,

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v.

DEN 109 LP dba DENNY’S #7425;
FRITZ MOLLER; and GEISELA
MOLLER,

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Defendants.

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Plaintiff,

Case No. 2:14-cv-00538-ODW(MRW)
ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES
AND COSTS [74]

I.

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INTRODUCTION

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Before the Court is Plaintiff Michael Rocca’s motion for attorneys’ fees. (ECF

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No. 74.) For the following reasons, the Court GRANTS Plaintiff’s motion and

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awards him $47,299.31.
II.

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FACTUAL BACKGROUND

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Plaintiff is a paraplegic who uses a wheelchair for mobility and a “mobility

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equipped vehicle when traveling.” (Compl. ¶ 8, ECF No. 1.) Defendants Fritz and

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Geisela Moller are associated with Defendant Den 109 LP, a Denny’s restaurant in

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Lynwood, California. (Id. ¶ 2.)

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Plaintiff visited the Denny’s in question “and encountered barriers” that

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interfered with his ability to “enjoy the goods, services, privileges, and

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accommodation offered at the facility.” (Id. ¶ 10.) Plaintiff allegedly encountered

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fifteen distinct barriers during his visit:

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1. Parking lot access aisles with a slope exceeding two percent;

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2. Parking lot access aisles without a painted “No Parking” label;

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3. Disabled parking spots with slopes and cross slopes exceeding two

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percent;

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4. Incorrect signage for the van accessible parking space;

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5. Incorrect tow-away signage for the disabled parking spaces;

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6. Absence of a handle-mounted door lock in the water closet;

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7. Absence of a self-closing door in the water closet;

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8. A waste receptacle that obstructs access to the water closet;

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9. A toilet tissue dispenser that obstructs the use of a side-grab bar;

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10. A toilet tissue dispenser that is too far from the back wall;

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11. A toilet tissue dispenser that is too far from the front of the water closet;

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12. Pipes beneath the lavatories that were improperly or incompletely

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wrapped;
13. A waste receptacle that obstructs access to the paper towel dispenser;

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14. A paper towel dispenser that is mounted too high; and

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15. Insufficient strike-side clearance when exiting the restroom.

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On January 23, 2014, Plaintiff filed a complaint asserting violations of: (1) the

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Americans with Disabilities Act (“ADA”); (2) the California Disabled Persons Act;

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(3) the Unruh Civil Rights Act; and (4) California Health and Safety Code section

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19955. (Id. ¶¶ 15–51.) On February 16, 2015, Plaintiff filed a motion for summary

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judgment. (ECF No. 37.) On May 5, 2015, the Court granted in part Plaintiff’s

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motion, finding that Plaintiff had established the existence of three barriers to access:

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that the parking lot aisles had a slope exceeding two percent, that the disabled parking

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spaces had slopes and cross slopes exceeding two percent, and that the door in the

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water closet was not self-closing. (Order 6–8, 14, ECF No. 46.) The Court ordered

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Defendants to remedy these violations and pay Plaintiff $4,000 in damages.

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(Judgment, ECF No. 46.) The Court denied Plaintiff’s motion as to the remaining

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barriers. (Order 7–12, 14.)

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The case then proceeded to trial. At trial, Plaintiff established the existence of

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one additional barrier: lack of a handle-mounted door lock in the water closet.

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(Conclusions of Law ¶ 11, ECF No. 54.) However, the Court found that Plaintiff had

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failed to satisfactorily establish the existence of the remaining barriers. (Id. ¶¶ 10, 12–

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14.)

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On September 2, 2015, Plaintiff filed a motion seeking $37,626.89 in attorneys’

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fees, litigation expenses, and costs. (Mot. 15, ECF No. 57-1.) On September 23,

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2015, the Court denied Plaintiff’s motion in its entirety. (Order 6, ECF No. 64.)

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Plaintiff separately appealed the Court’s Findings of Fact and Conclusions of

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Law and its decision on his motion for attorneys’ fees. (ECF Nos. 59, 69.) Those

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appeals were subsequently consolidated upon Plaintiff’s motion.

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Docket Entry 7 (granting unopposed motion to consolidate).) On March 23, 2017, the

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Ninth Circuit issued an order affirming the Court’s Findings of Fact and Conclusions

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of Law. Rocca v. Den 109 LP, No. 15-56407, 2017 WL 1089550, at *2 (9th Cir. Mar.

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(See Appellate

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23, 2017). However, the Ninth Circuit reversed the Court’s denial of Plaintiff’s

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motion for attorneys’ fees, noting that Plaintiff was in fact the prevailing party and

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thus entitled to some measure of fees. Id. The Ninth Circuit remanded the case for a

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determination of the appropriate measure of attorneys’ fees. Id.

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Plaintiff filed the pending motion for attorneys’ fees on May 8, 2017, seeking

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$86,734.31 in attorneys’ fees, litigation expenses, and costs. (New Mot. 14, ECF No.

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74-1.) That motion is now fully briefed and ready for decision. (See ECF Nos. 75–

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76.)1
III.

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LEGAL STANDARD

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“The ADA authorizes a court to award attorneys’ fees, litigation expenses, and

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costs to a prevailing party.” Moore v. Chase, Inc., No. 1:14-CV-01178-SKO, 2016

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WL 3648949, at *1 (E.D. Cal. July 7, 2016) (quoting Lovell v. Chandler, 303 F.3d

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1039, 1058 (9th Cir. 2002)); see also 42 U.S.C. § 12205.

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appropriate fee award, courts must first calculate the “lodestar” figure by multiplying

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the reasonable hourly rate in the community at issue with the number of hours

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reasonably expended on the litigation. United Steelworkers of Am. v. Phelps Dodge

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Corp., 896 F.2d 403, 406 (9th Cir. 1990). After determining the lodestar figure, the

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Court may adjust the award based on the Kerr factors, which include: (1) the time and

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labor required; (2) the novelty and difficult of the questions involved; (3) the skill

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requisite to perform the legal service properly; (4) the preclusion of other employment

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by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the

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fee is fixed or contingent; (7) time limitations imposed by the client or the

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circumstances; (8) the amount involved and the results obtained; (9) the experience,

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reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the

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nature and length of the professional relationship with the client; and (12) awards in

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similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)

In determining an

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After considering the papers filed in connection with this motion, the Court deemed the matter
appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.

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abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992).

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Courts “need not consider all twelve factors . . . only those called into question by the

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case at hand and necessary to support the reasonableness of the fee award.” Cairns v.

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Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002).
IV.

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DISCUSSION

A. The Loadstar Figure

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1. Reasonable Hourly Rate

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Plaintiff requests fees in the amount of $600/hour for lead counsel Scottlyn

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Hubbard and senior partner Lynn Hubbard; $400/hour and $300/hour for associates

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Khush Mehton and Stephanie Ross, respectively; and $125–$150 an hour for

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paralegals assigned to this case. (New Mot. 7, 14; Hubbard Decl., Ex. 2 at 2–3, ECF

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No. 74-4.)

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Reasonable hourly rates are determined by examining “prevailing rate[s]” in the

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relevant community for attorneys and paralegals performing similar work with

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comparable levels of “skill, experience, and reputation.” Camacho v. Bridgeport Fin.,

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Inc., 523 F.3d 973, 979 (9th Cir. 2008) (quoting Barjon v. Dalton, 132 F.3d 496, 502

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(9th Cir. 1997)). The relevant community is the district in which the adjudicating

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court “sits.” Id. (citing Barjon, 132 F.3d at 500).

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The party seeking attorneys’ fees bears the burden of showing that the proposed

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hourly rate is reasonable. See id. at 980 (citing Blum v. Stenson, 465 U.S. 886, 895

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n.11 (1984)). This is done by submitting affidavits of counsel, affidavits of other

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counsel in the relevant community, and by providing case law examples of the

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relevant community rate. See id. at 980–81.

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In support of his proposed hourly rates, Plaintiff submits a declaration from lead

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counsel, Scottlyn Hubbard, detailing Hubbard’s knowledge and expertise and the

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knowledge and expertise of other counsel who worked on this case. (Hubbard Decl.,

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ECF No. 74-2.) Plaintiff also submits the declaration of attorney Russell Handy,

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another ADA practitioner in the Central District, who indicates that Hubbard’s

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proposed hourly rate is reasonable. (Handy Decl. ¶ 9, ECF No. 74-6.) Finally,

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Plaintiff points to case law suggesting that Hubbard’s proposed rate is reasonable.

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(New Mot. 6); see also Camarillo v. Cty. of Maywood, Case No. 2:07-cv-3469-ODW

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(SHx), 2015 WL 505886, *9 (C.D. Cal. Feb. 04, 2015) (finding similarly experienced

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civil rights counsel’s $650 hourly rate reasonable) overruled on other grounds by

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Gonzalez v. City of Maywood, 671 F. App’x 564 (9th Cir. 2016). Defendants have not

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opposed Plaintiff’s proposed hourly rates.

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documentation and the relevant case law, the Court finds that Plaintiff’s proposed

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hour rates are reasonable.

In light of Plaintiff’s supporting

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2. Number of Hours Reasonably Expended on the Litigation

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Plaintiff is entitled to compensation for all time reasonably spent litigating this

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case. Camacho v. Bridgeport Fin., Inc., No. C 04-00478 CRB, 2008 WL 2951290, at

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*5 (N.D. Cal. July 24, 2009) (emphasis added). Plaintiff seeks compensation for

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187.25 hours of attorney and paralegal work. (Hubbard Decl., Ex. 2 at 12, ECF No.

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74-4.)

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The Court will give Plaintiff and his counsel this—they have some chutzpah in

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putting forth their proposed “reasonable” hours calculation. On September 2, 2015, in

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support of Plaintiff’s previous motion for attorneys’ fees and after the conclusion of

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the proceedings before this Court, Plaintiff’s counsel Scottlynn Hubbard signed a

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declaration under penalty of perjury indicating that the “billing entries” (hereafter

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“Bill 1”) attached as Exhibit 3 were “true and accurate.” (Hubbard Decl. ¶ 22, ECF

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No. 57-2.) Bill 1 indicates that Hubbard’s firm spent 76.45 hours “total” on the

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proceedings before this Court. (Hubbard Decl., Ex. 3 at 12, ECF No. 57-4.) On May

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8, 2017, Hubbard signed a declaration under penalty of perjury indicating that the

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“billing entries” (hereafter “Bill 2”) attached as Exhibit 2 were “true and accurate.”

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(Hubbard Decl. ¶ 24, ECF 74-2.) Bill 2 indicates that Hubbard’s firm spent 187.25

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hours “total” on the proceedings before this Court and the two appeals before the

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Ninth Circuit. (Hubbard Decl., Ex. 2 at 12, ECF No. 74-4.)

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It is hardly surprising that Bill 2 contains a higher hours “total” than Bill 1

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given that it takes into account the hours expended on appeal. Nevertheless, Bill 2 is

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extremely worrisome. Adding together the time entries after August 19, 2015, the last

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entry (Entry 203) on Bill 1, reveals that Plaintiff’s counsel spent 67.8 hours on appeal

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in this matter. (See Hubbard Decl., Ex. 2 at 10–12, ECF No. 74-4.) This means that

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Plaintiff and his counsel are now seeking to recover for 119.45 hours associated with

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the proceedings before this Court—forty-three more hours than the “total” previously

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sought. (Compare Hubbard Decl., Ex. 3, ECF No. 57-4, with Hubbard Decl., Ex. 2,

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ECF No. 74-4.)

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Plaintiff’s after-the-fact addition of hours is totally unacceptable. Moreover, it

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is totally unjustified—Plaintiff does not even acknowledge or explain the addition of

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the forty-three hours in his pending motion. For these reasons, the Court will not use

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the proposed 187.25-hour “total” in calculating the lodestar figure. Instead, the Court

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will use 144.25 hours: the 76.45-hour “total” from Bill 1 plus the 67.8 hours

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associated with the appeals in this matter. (See Hubbard Decl., Ex. 3, ECF No. 57-4 at

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12; Hubbard Decl., Ex. 2, ECF No. 74-4.)

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3. Loadstar Calculation

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Attorneys’ fees for the proceedings before this Court are $31,612.50 and

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attorneys’ fees on appeal are $25,425. Accordingly, the loadstar figure is $57,037.50.

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B. Reductions to the Loadstar Figure for Limited Success

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The Supreme Court held in Hensley v. Eckerhart, 461 U.S. 424, 434–440

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(1983) that the extent of a Plaintiff’s success is a “crucial factor” in determining

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whether to reduce the loadstar figure. See also Kerr, 526 F.2d at 70 (noting that

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“results obtained” may warrant a reduction of the loadstar figure). Therefore, the

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Court considers the extent of Plaintiff’s success in the proceedings before this Court

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and on appeal.

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1. The Proceedings Before This Court

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Plaintiff was successful on summary judgment and at trial in proving that he

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encountered four out of the fifteen alleged barriers. Defendants argue that the loadstar

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figure should be reduced on a pro-rata basis to reflect this rate of success. (Opp’n 10,

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ECF No. 75.) Plaintiff argues in response that case law explicitly forecloses such a

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pro-rata reduction where the claims alleged are related, meaning they share a common

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legal theory. (Reply 6–10, ECF No. 76.)
Plaintiff is correct. Where, as here, the claims are related, courts may not effect

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a pro-rata reduction.

See Chapman v. Pier 1 Imports, Inc., No. CV.S-04-1339

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LKK/DAD, 2007 WL 2462084, at *3 (E.D. Cal. Aug. 24, 2007). Nevertheless, the

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Court may still effect some reduction in recognition of Plaintiff’s limited success. In

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Chapman v. Pier 1 Imports, Inc., another ADA case involving Plaintiff’s counsel, the

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plaintiff was successful at trial in proving that he encountered seven out of twenty-two

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alleged barriers. 2007 WL 2462084, at *3. Based on that rate of success, the district

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court reduced the loadstar figure by fifteen percent. Id. Plaintiff’s rate of success in

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this case was even lower than the plaintiff in Chapman (the plaintiff in Chapman

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prevailed on thirty-two percent of his barrier claims to Plaintiff’s twenty-six percent.)

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Accordingly, the Court reduces Plaintiff’s attorneys’ fees relevant to the proceedings

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before this Court by twenty percent to reflect his limited success.2

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Plaintiff’s attorneys’ fees relevant to the proceedings before this Court are reduced

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from $31,612.50 to $25,290.

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2. On Appeal

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Plaintiff filed two appeals: an appeal of the Court’s decision on the merits and

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an appeal of the Court’s decision on his motion for attorneys’ fees. (See ECF Nos. 59,

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69.) As noted above, these two appeals were subsequently consolidated. Plaintiff

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now seeks to recover attorneys’ fees associated with both appeals.

Therefore,

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It is worth pointing out that Plaintiff acknowledges a reduction of some type may be
necessary to reflect his limited success. (Reply 11.)

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It is beyond dispute that Plaintiff may recover for the successful appeal of his

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motion for attorneys’ fees. Rodgers v. Claim Jumper Rest., LLC, No. 13-CV-5496

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YGR, 2015 WL 1886708, at *9 (N.D. Cal. Apr. 24, 2015) (“The Court may award

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fees for ‘time spent by counsel in establishing the right to a fee award.’” (quoting

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Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992)).

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However, the Court will not award fees for Plaintiff’s unsuccessful appeal of the

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Court’s decision on the merits. Had Plaintiff’s appeals not been consolidated, he

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would not have been entitled to recover attorneys’ fees associated with his

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unsuccessful merits appeal. Clark v. City of Los Angeles, 803 F.2d 987, 993 (9th Cir.

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1986) (holding that a district court did not abuse its discretion in denying attorneys’

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fees for unsuccessful appeal); Thompson v. Gomez, 45 F.3d 1365, 1368–69 (9th Cir.

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1995) (suggesting that attorneys’ fees may be “awarded for work performed on

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successful appeals . . . but not for unsuccessful ones.”).

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consolidation, an administrative tool that promotes judicial economy, should not

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function to make attorneys’ fees associated with an otherwise unsuccessful appeal

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recoverable. As the Court is unable to distinguish in Bill 2 between time spent on the

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merits appeal and time spent on the motion appeal, the Court will reduce the

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attorneys’ fees associated with the two appeals by fifty percent to reflect Plaintiff’s

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success on one out of the two appeals. Therefore, the attorneys’ fees associated with

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the two appeals are reduced from $25,425 to $12,712.50.

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C. Litigation Expenses and Costs

The mere use of

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The ADA provides that the prevailing party may recover litigation expenses and

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costs as part of a motion for attorneys’ fees. Moore, 2016 WL 3648949, at *1

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(quoting Lovell, 303 F.3d at 1058); 42 U.S.C. § 12205. Plaintiff requests a total of

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$9,296.81 in litigation expenses and costs. (New Mot. 14.) Defendant contends that

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Plaintiff offers no support for his proposed award of litigation expenses and costs.

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(Opp’n 11.) While the expense entries Plaintiff submits are at times inconsistent,

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Plaintiff has submitted supporting documentation for the vast majority of his claimed

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litigation expenses and costs. (See Hubbard Decl., Ex. 3, ECF Nos. 74-5.) Therefore,

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the Court awards Plaintiff $9,296.81 in litigation expenses and costs.
V.

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CONCLUSION

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In light of the foregoing, the Court GRANTS Plaintiff’s motion for attorneys’

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fees. (ECF No. 74.) The Court awards Plaintiff attorneys’ fees in the amount of

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$38,002.50 ($25,290 associated with the proceedings before this Court and

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$12,712.50 associated with his successful appeal) and litigation costs and expenses in

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the amount of $9,296.81 for a total award of $47,299.31.

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IT IS SO ORDERED.

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June 13, 2017

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____________________________________
HON. OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE

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