Shirley Lindsay v. Erwine Properties LLC et al

Filing 36

MINUTES (IN CHAMBERS) Order Granting in Part Plaintiff's Motion for Attorney'sFeesby Magistrate Judge Jean P. Rosenbluth. Plaintiff's motion is GRANTED IN PART. Defendant is ordered to pay $12,315 in fees and $620 in costs to Plaintiff, for a total award of $12,935, no later than 14 days from the date of this Order unless the parties agree in writing otherwise. (See document for further details.) (sbou)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL

Case No. CV 17-5906-JPR
Date: October 18, 2018
Title: Shirley Lindsay v. Erwine Props., LLC
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DOCKET ENTRY: Order Granting in Part Plaintiff’s Motion for Attorney’s
Fees
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PRESENT:
HON. JEAN P. ROSENBLUTH, MAGISTRATE JUDGE
Bea Martinez
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None present

n/a
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None present

PROCEEDINGS: (IN CHAMBERS)
On June 12, 2018, Plaintiff moved for an award of attorney’s fees. On July 12,
Defendant filed its opposition. On August 23, Plaintiff filed a reply. The Court
found this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78;
C.D. Cal. R. 7-15. After considering the supporting and opposing papers, the Court
GRANTS the motion IN PART.
I.

BACKGROUND

On August 9, 2017, Plaintiff Shirley Lindsay filed this action against
Defendant Erwine Properties, LLC, alleging violations of the Americans with
Disabilities Act of 1990 and the Unruh Civil Rights Act. On April 26, 2018, the
parties engaged in mediation and reached a full settlement. (Mot., Mem. P. & A. at
1.) In the settlement agreement executed that day, Defendant agreed to appropriate
injunctive relief and to pay damages of $4000 to Plaintiff. (Potter Decl., Ex. 3 at 2.)
Defendant also agreed that Plaintiff is entitled to recover reasonable attorney’s fees
and costs as determined by the Court. (Id.)
As the prevailing party, Plaintiff seeks a total of $14,507.50 in fees and costs.
(Mot. at 1 & Mem. P. & A. at 13-14; Potter Decl., Ex. 2.) Defendant did not oppose
her motion or otherwise seek an extension of time to do so. On July 3, the Court
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CIVIL MINUTES--GENERAL

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Shirley Lindsay v. Erwine Props., LLC

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granted Plaintiff’s motion. On July 11, Defendant filed an ex parte application for
relief, requesting that the Court set aside its July 3 Order and seeking leave to file an
opposition. The Court granted the application. Defendant filed its opposition on July
12, arguing that Plaintiff’s motion should be denied because the attorney’s fees
charged are unreasonably excessive, duplicative, or fabricated. (Opp’n at 2.)
Plaintiff filed her reply on August 23.
II.

LEGAL STANDARD

Ordinarily, a prevailing party does not collect fees absent contractual or
statutory authorization. See Int’l Union of Petroleum & Indus. Workers v. W. Indus.
Maint., Inc., 707 F.2d 425, 428 (9th Cir. 1983). Under the ADA, attorney’s fees are
available to a prevailing party. 42 U.S.C. § 12205. Similarly, a defendant “is liable
for” attorney’s fees “suffered by any person denied the rights provided by” the Unruh
Act, as determined by the court. Cal. Civ. Code § 52(a); see also Alaska-Rent-A-Car,
Inc. v. Avis Budget Grp., Inc. 738 F.3d 960, 973 (9th Cir. 2013) (stating that in action
involving state-law claims, court applies law of forum state to determine if party is
entitled to attorney’s fees).
When an award of attorney’s fees is authorized, the court must calculate the
proper amount to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424,
433-34 (1983). Reasonableness is generally determined using the “lodestar” method,
in which a court considers the work completed by the attorneys and multiplies “the
number of hours reasonably expended on the litigation by the reasonable hourly rate.”
Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th Cir. 1983). The moving party
has the burden to produce evidence that the rates and hours worked are reasonable.
Id. at 622-23. Once the moving party has done so, “[t]he party opposing the fee
application has a burden of rebuttal that requires submission of evidence to the
district court challenging the accuracy and reasonableness of the hours charged or the
facts asserted by the prevailing party in its submitted affidavits.” Gates v.
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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL

CV 17-5906-JPR
Shirley Lindsay v. Erwine Props., LLC

Case No.:

October 18, 2018
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Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). All hours that are excessive,
redundant, or otherwise unnecessary should be excluded. Hensley, 461 U.S. at 434.
In most cases, the lodestar figure is presumptively reasonable. Camacho v.
Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citing Ferland v. Conrad
Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)). If circumstances warrant, a
court may “adjust the lodestar to account for other factors which are not subsumed
within it.” Id. In such cases, a court may make upward or downward adjustments
based on the 12 factors set out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 6970 (9th Cir. 1975), abrogated on other grounds by City of Burlington v. Dague, 505
U.S. 557 (1992); see also Stetson v. Grissom, 821 F.3d 1157, 1167 (9th Cir. 2016)
(applying Kerr factors). Those factors are largely undisputed here except for the
attorneys’ hourly rate and the hours expended. To the extent the Kerr factors are used
to adjust the determination of “reasonable” hours times “reasonable” rate, they may
not be double counted later. See Corder v. Gates, 947 F.2d 374, 377-78 (9th Cir.
1991).
III.

DISCUSSION

Plaintiff seeks a total of $14,507.50, consisting of $13,887.50 in attorney’s fees
and $620 in costs. (Potter Decl., Ex. 2.) Defendant accuses Plaintiff’s attorneys of
inflated and improper billing practices given that they are experienced disability
lawyers and have filed 185 similar cases on Plaintiff’s behalf alone. (Opp’n at 1-2;
Daghighian Decl. ¶ 3 & Ex. A.) Those arguments are part of “a troubling trend in
which disability access defendants attack the motives of plaintiffs and their counsel in
nearly every case brought to enforce the right of equal access guaranteed by the ADA
and California statutes.” Kittok v. Leslie’s Poolmart, Inc., 687 F. Supp. 2d 953, 958
(C.D. Cal. 2009) (collecting cases). Indeed, endorsing such arguments would deter
disability plaintiffs from pursuing their rights under the law and would contravene a
stated purpose of the ADA. See Hensley, 461 U.S. at 429 (Congress enacted feeshifting provisions of civil-rights laws “to ensure effective access to the judicial
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process for persons with civil rights grievances” (citation omitted)); Jankey v. Poop
Deck, 537 F.3d 1122, 1131 (9th Cir. 2008) (legislature passed ADA in part “to ensure
effective access to judicial process for persons with civil rights grievances”;
therefore, recovery of attorney’s fees “is the rule rather than the exception” (citation
omitted)). The Court declines to further consider Defendant’s policy arguments,
which are better directed to Congress.
A.

Hourly Rate

Fee applicants bear the burden of proving that their requested rates are
reasonable. Chaudhry v. City of L.A., 751 F.3d 1096, 1110 (9th Cir. 2014).
“Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in
the community, and rate determinations in other cases, particularly those setting a rate
for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”
United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.
1990). Once a plaintiff meets the initial burden of providing evidence, “the opposing
party ‘has a burden of rebuttal that requires submission of evidence . . . challenging
the accuracy and reasonableness of the . . . facts asserted by the prevailing party in its
submitted affidavits.’” Chaudhry, 751 F.3d at 1110-11 (quoting Camacho, 523 F.3d
at 980).
Defendant contends that Plaintiff has not shown that the proposed rates are
reasonable because she has proffered no evidence of prevailing market rates or
declarations from all of her lawyers supporting their qualifications. (See Opp'n at 4.)
But Plaintiff has submitted ample evidence to support the hourly rates sought. Mark
Potter’s declaration provides extensive and detailed information demonstrating that
Plaintiff’s attorneys are well-versed in disability law. Potter bills at $425 an hour, has
practiced disability law for 20 years, and has litigated over 2000 disability cases.
(Potter Decl. ¶ 6.) Russell Handy also bills at $425 an hour. (Id. ¶ 7.) He has
practiced disability litigation for 17 years and has litigated over 1000 ADA cases,
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including more than 40 trials. (Id.) Ray Ballister bills at $425 an hour. (Id. ¶ 8.) He
has practiced law for 29 years, including more than 10 years focusing exclusively on
disability-access cases. (Id.) Phyl Grace bills at $350 an hour. (Id. ¶ 9.) She has
practiced law for 22 years, and she spent the last decade focusing exclusively on
disability cases. (Id.) Dennis Price is the most junior attorney at the firm, which is
reflected in his lower billing rate of $300 an hour. (Id. ¶ 10.) He has been an
attorney for seven years, has worked with Potter since 2012, and has participated in
hundreds of disability-rights cases. (Id.)
Potter’s declaration shows that the rates billed are in line with prevailing
market rates. (Id. ¶ 12.) He has described his “extensive experience” regarding
attorney billing and court awards in disability-rights cases and has stated under
penalty of perjury that “the rates billed by the Center for Disability Access for its
attorneys are well within market rates.” (Id.) In addition, courts within this district
have approved fee awards for four of Plaintiff’s attorneys at the same rates sought
here. See, e.g., Lopez v. Gordon, No. 2:14-cv-07791-CAS(BKx), 2016 WL 6998563,
at *2 (C.D. Cal. Nov. 28, 2016) (approving hourly rates of $425 for Potter and
Ballister, $350 for Grace); Salinas v. Rite Aid Lease Mgmt. Co., No. CV 10-7499
SVW (FMOx), 2011 WL 1107213, at *1-2 (C.D. Cal. Mar. 17, 2011) (approving
hourly rates of $425 for Potter, Handy, and Ballister). And Plaintiff has submitted a
2016 decision of a court within this district approving a $250 hourly rate for Price.
(Potter Decl., Ex. 5) Given that Price has gained more than two years of experience
since then, his current rate of $300 an hour is reasonable.
Defendant argues that each of Plaintiff’s attorneys must submit his or her own
declaration demonstrating the relevant qualifications and that the rates billed accord
with prevailing market rates. (Opp’n at 4.) But Potter’s declaration achieves this
purpose. (See Potter Decl., Ex. 5 at 4 (case finding hourly rates reasonable based on
Potter’s declaration of attorneys’ experience and attestation that “rates billed by
Center for Disability Access for its attorneys are well within market rates”)); see also
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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL

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Nadarajah v. Holder, 569 F.3d 906, 917 (9th Cir. 2009) (affirming award of
attorney’s fees at $500 an hour when party submitted declaration from former
associated attorney describing her experience and attaching copies of fee awards in
same geographical area where counsel had comparable experience). As managing
partner for the Center for Disability Access, Potter manages the firm’s personnel and
handles the billing and invoices (Potter Decl. ¶ 2), rendering him knowledgeable
about the qualifications and experience of the CDA attorneys. Moreover, given his
extensive experience as a disability-rights attorney (id. ¶¶ 6, 12), the Court has no
reason to mistrust his statements under penalty of perjury concerning prevailing
market rates. Defendant has provided no contradictory evidence. In any event,
Plaintiff has also submitted evidence that other courts within this district have
approved fees equal or close to those sought here. (Id., Exs. 4, 5, 6, 7.)
Accordingly, the Court finds that Plaintiff has established the reasonableness of
the requested hourly rates for each of the five attorneys.
B.

Number of Hours

Plaintiff seeks $13,887.50 for a total of 33.5 hours of attorney time. (Potter
Decl., Ex. 2.) Defendant claims that many of the hours billed are excessive or
fabricated. Plaintiff’s case has been ongoing for more than a year. Her five attorneys
performed a variety of tasks to see her case through to the present motion, such as
investigating claims, drafting a complaint, communicating with opposing counsel
regarding settlement, preparing for and conducting mediation, reviewing and
responding to Defendant’s ex parte application, reviewing Court orders, and drafting
the present fee motion and reply. (Id. at 1-8.) Although a total of 33.5 hours appears
generally reasonable for the work performed, a closer examination of the billing
statements reveals three areas that require minor adjustments.

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CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL

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1.

Excessive hours

Handy billed 2.4 hours to review the investigator’s report and 80 photographs
and make notes to the case file. (Potter Decl., Ex. 2 at 4.) Given his extensive
experience with disability litigation (Potter Decl. ¶ 7) and the fact that accessible
parking at only a single location was at issue (Mot. at 1), the time spent was
excessive. Accordingly, the Court reduces this time by 25 percent, or .6 hours. See
Hensley, 461 U.S. at 434 (district court may exclude any hours that are excessive,
redundant, or otherwise unnecessary).
2.

Time for hearing

In addition, Potter billed an estimated eight hours in connection with the
present motion — to review the opposition, prepare a reply, and attend oral argument.
(Potter Decl., Ex. 2 at 3.) Defendant complains that this eight-hour entry constitutes
block billing, which makes it impossible to determine what work was performed and
for how long. (Opp’n at 8-9.) “‘Block billing’ is ‘the time-keeping method by which
each lawyer and legal assistant enters the total daily time spent working on a case,
rather than itemizing the time expended on specific tasks.’” Welch v. Metro. Life Ins.
Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007) (quoting Harolds Stores, Inc. v. Dillard
Dep’t Stores, Inc., 82 F.3d 1533, 1554 n.15 (10th Cir. 1996)). Plaintiff’s billing entry
sufficiently conveys the nature of the activities and the reasonableness of the time
expended. See Fitzgerald v. City of L.A., No. CV 03-01876 DDP (RZx)., 2009 WL
960825, at *8 (C.D. Cal. Apr. 7, 2009) (approving block billing when entries were
detailed enough for court to assess reasonableness of time spent on tasks).1 But
1

Apart from the eight-hour entry addressed here, Defendant points to no
other block-billed entry. In any event, the billing entries are sufficiently detailed.
See Fitzgerald, 2009 WL 960825, at *8.
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because the Court found this matter appropriate for resolution without a hearing, see
Fed. R. Civ. P. 78; C.D. Cal. R. 7-15, Potter’s billing must be adjusted to eliminate
time estimated for the hearing. Although the billing statement does not specify what
percentage of the estimated time was allocated to the hearing, three hours for travel,
preparation, and time at the hearing is reasonable. The Court therefore reduces the
eight-hour entry by three hours.
3.

Clerical work

Defendant also claims that Plaintiff’s attorneys have improperly billed 21
different clerical tasks as attorney time. (Opp’n at 9-12.) Purely clerical tasks should
not be billed at a lawyer’s rate regardless of who performs them. Davis v. City &
Cnty. of S.F., 976 F.2d 1536, 1543 (9th Cir. 1992), vacated in part on other grounds,
984 F.2d 345 (9th Cir. 1993). Having reviewed the billing entries in detail, the Court
finds that all but one were appropriately billed as attorney time. Each such entry
involved an attorney instructing clerical staff on work to be done. (See Potter Decl.,
Ex. 2. at 2-8.) Only Ballister’s April 23, 2018 .1-hour billing entry for “submitted
plaintiff’s mediation brief” (id. at 5) appears to be clerical in nature and thus should
not be included in the attorney’s fee award. Accordingly, the Court reduces the fee
award by .1 hour.
Defendant’s remaining arguments about hours billed are without merit.
C.

Lodestar Calculation

The lodestar based on the reasonable rates and hours discussed above is
$12,315, as calculated below. Plaintiff’s counsel do not seek a multiplier of the
lodestar. (Mot., Mem. P. & A. at 8.)

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October 18, 2018
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Timekeeper

Hourly Rate

Hours
(postreduction)

Total Amount

Mark Potter

$425

11.1

$4717.50

Russell Handy

$425

5.6

$2380

Raymond G. Ballister, Jr.

$425

9.1

$3867.50

Phyl Grace

$350

3

$1050

Dennis Price

$300

1

$300

D.

Defendant’s Rule 68 Settlement Offer

On December 17, 2017, Defendant offered Plaintiff $3000 to settle her case
(Daghighian Decl. ¶ 4) under Federal Rule of Civil Procedure 68, which allows a
defendant to serve a settlement offer at least 14 days before the date set for trial. See
Fed. R. Civ. P. 68(a). On January 8, 2018, Plaintiff rejected the offer and made a
counteroffer of $13,750 by email. (Supp. Potter Decl. ¶ 2 & Ex. B.) Plaintiff
contends she received no response to the counteroffer (Reply at 6), and Defendant has
submitted no evidence to the contrary. The parties settled the matter at the April 26,
2018 mediation for $4000. Defendant now claims that Plaintiff’s refusal of the initial
$3000 settlement offer was intended to drag on litigation and increase attorney’s fees
and that the $4000 settlement was not more favorable than Defendant’s earlier $3000
offer in light of the significant attorney time expended to secure only an additional
$1000. (Opp’n at 12; Daghighian Decl. ¶¶ 4-5.)
Rule 68 provides that “[i]f the judgment that the offeree finally obtains is not
more favorable than the unaccepted offer, the offeree must pay the costs incurred
after the offer was made.” Fed. R. Civ. P. 68(d). Here, Plaintiff recovered $4000
after mediation, 25 percent more than Defendant’s initial $3000 settlement offer,
which by itself renders Rule 68(d) inapplicable. See Delta Air Lines, Inc. v. August,
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450 U.S. 346, 354 (1981) (“[Rule 68(d)] does not apply . . . to judgments in favor of
the plaintiff for an amount greater than the settlement offer.”) “[T]he plain language
of Rule 68 confines its effect to . . . the type of case . . . in which the plaintiff has
obtained a judgment for an amount less favorable than the defendant’s settlement
offer.” Id. at 351; see also Bright v. Land O’Lakes, Inc., 844 F.2d 436, 443 (7th Cir.
1988) (focusing on plain language of Rule 68 and rejecting contention that rule
precluded award of attorney’s fees and costs for time spent after settlement offer that
was “surprisingly close” to damages award). In any event, as Plaintiff explains
(Reply at 5-6), the initial $3000 offer did not include attorney’s fees or injunctive
relief, making it substantially less than what the case ultimately settled for (see also
Potter Decl., Ex. 3 ¶¶ 3-4). Thus, Rule 68 does not come into play.
E.

Costs

Plaintiff seeks $620 in costs, for service fees ($20), filing fees ($400), and an
investigator fee ($200). (Mot., Mem. P. & A. at 13.) These costs are reasonable, and
Defendant has not argued otherwise.
IV.

CONCLUSION

For all these reasons, Plaintiff’s motion is GRANTED IN PART. Defendant is
ordered to pay $12,315 in fees and $620 in costs to Plaintiff, for a total award of
$12,935, no later than 14 days from the date of this Order unless the parties agree in
writing otherwise.
IT IS SO ORDERED.

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