Tarango v. City of Bakersfield

Filing 50

ORDER GRANTING IN PART 46 Plaintiff's Motion for Attorney Fees, signed by Magistrate Judge Jennifer L. Thurston on 11/20/2017. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMILIO TARANGO,
Plaintiff,

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v.

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CITY OF BAKERSFIELD,
Defendant.

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Case No.: 1:16-cv-0099 - JLT
ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR ATTORNEY FEES
(Doc. 46)

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Emilio Tarango and the City of Bakersfield entered into a settlement agreement, which

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included a provision stating the City “agreed to pay reasonable attorney’s fees and costs awarded by

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the Court (subject to the right of an appeal).” (Doc. 44 at 2) The parties also agreed the Court would

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adjudicate Plaintiff’s application for attorneys’ fees and costs (id.), which is now pending before the

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Court. (Doc. 46) For the reasons set forth below, Plaintiff’s motion for fees and costs is GRANTED

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in part, in the modified amount of $107,595.00.

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I.

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Background
Plaintiff reported that he “is a profoundly deaf individual whose first and primary language is

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American Sign Language.” (Doc. 1 at 3, ¶ 7) He was hired by the City of Bakersfield in 1995, and

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has remained employed by the City for over twenty years. (Id., ¶¶8- 9) Plaintiff asserted he was hired

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as Fleet Service Worker and “was promoted to Fleet Service Worker II in 1998,” but since that time

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“has only been promoted after filing a discrimination complaint with the California Department of Fair
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Employment and Housing.” (Id., ¶¶ 10-12) Plaintiff alleged he “was denied the opportunity to take

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classes and receive further training, unlike other non-disabled co-workers.” (Id., ¶ 14) In addition,

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Plaintiff alleged he “has been overlooked for new job opportunities that arise in his workplace despite

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his seniority over other younger, non-deaf co-workers.” (Id., ¶ 12) For example, Plaintiff reported the

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City asked him “train younger, non-deaf employees, who have then been promoted over him and

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given the ability to earn more pay.” (Id., ¶ 13)

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Plaintiff asserted that throughout the course of his employment, he “made repeated requests for

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an ASL interpreter to facilitate effective communication, but these requests are routinely denied.”

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(Doc. 1 at 3, ¶ 15) As a result, Plaintiff contended he “has been forced to attend mandatory meetings

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without the benefit of an ASL interpreter.” (Id., ¶ 16) In addition, Plaintiff reported he “has never been

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provided an ASL interpreter for safety classes, which he is forced to sit through with his other co-

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workers despite the fact that he is unable to hear or participate by asking questions or understanding co-

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workers’ questions and the answers thereto.” (Id. at 3-4, ¶ 17)

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He alleged he was “subjected to exceptional scrutiny by his supervisors, who have treated him

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rudely and with deliberate indifference because he is deaf.” (Doc. 1 at 4, ¶ 18) He reported, “This

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treatment has caused [him] to feel belittled, humiliated, ashamed, and completely isolated, which has

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also led to anxiety and depression.” (Id., ¶ 19)

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Plaintiff filed a Charge of Discrimination with both the Department of Fair Employment and

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Housing and the Equal Employment Opportunity Commission on July 3, 2015. (Doc. 1 at 4, ¶ 23) The

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DFEH issued a Notice of Right to Sue on September 9, 2015 and the EEOC issued a Notice of Right to

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Sue on October 29, 2015. (Id., ¶¶ 24-25) He initiated the action now pending before the Court by

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filing a complaint on January 21, 2016. (Doc. 1) Plaintiff alleged the City was liable for the following

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causes of action: (1) discrimination based on his disability in violation of Title I of the Americans with

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Disabilities Act, 42 U.S.C. § 12111 et seq.; (2) failure to accommodate disability in violation of Title I;

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(3) violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; (4) harassment based on

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disability in violation of the Fair Employment and Housing Act (“FEHA”), Cal. Gov’t. Code § 12940;

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(5) disability discrimination in violation of Cal. Gov’t Code §12940; (6) failure to accommodate

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disability in violation of Cal. Gov’t Code §12940(k); (7) failure to engage in the interactive process in
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violation of Cal. Gov’t Code § 12940(n); and (8) failure to take reasonable steps to prevent harassment

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and discrimination in violation of Cal. Gov’t Code § 12940(j). (See generally Doc. 1 at 5-12)
On July 28, 2017, the parties entered into a settlement agreement (Doc. 41), memorialized in the

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“Consent Decree Re: Settlement of Equitable Relief Claims” filed on August 10, 2017 (Doc. 43). The

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terms include, but are not limited to, an agreement that the City “will provide a qualified ASL

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Interpreter(s) for all [City] Safety and Training Meeting and all standard training sponsored by the

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[City] involving Mr. Tarango’s employment with [the City].” (Doc. 43 at 2, ¶ 2) In addition, the City

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“will provide either ASL Interpreter(s) or Video Remote Interpreting (“VRI”) Service for Mr. Tarango,

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whichever is most appropriate to ensure effective communication in the City's reasonable discretion,”

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for individual scheduled meetings, general meetings, and meetings with healthcare professionals. (Id. at

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3, ¶¶ 2-3, 6) Further, the parties set forth additional terms for equitable relief in the Consent Decree,

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which was signed and ordered by the Court on October 25, 2017. (Doc. 49) The parties also agreed

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the Court would adjudicate Plaintiff’s application for attorneys’ fees and costs. (Doc. 44 at 2)
Pursuant to the terms of the parties’ agreement, Plaintiff filed the motion for attorney fees and

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costs now pending before the Court. (Doc. 46) The City filed its opposition to the motion on October

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4, 2017 (Doc. 47), to which Plaintiff filed a brief in reply on October 11, 2017 (Doc. 48).

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II.

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Legal Standard
Plaintiff seeks an award of fees, noting the Americans with Disability Act (“ADA”), the

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Rehabilitation Act, and FEHA “each authorize an award of attorneys’ fees and costs to the prevailing

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party in a civil lawsuit brought thereunder.” (Doc. 46 at 1)

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Specifically, pursuant to ADA, “the court … in its discretion, may allow the prevailing party,

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other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs.” 42

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U.S.C. § 12205; Barrios v. California Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002) (“a

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prevailing party under the ADA “should ordinarily recover an attorney’s fee unless special

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circumstances would render such an award unjust”). The Rehabilitation Act also provides that “the

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court… may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 29 U.S.C.

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§794a(b); see also Jacobson v. Delta Airlines, Inc., 742 F.2d 1202, 1203 (9th Cir. 1984) (explaining the

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act “expressly authorizes courts to award the prevailing party, other than the United States, in any
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action or proceeding under the Rehabilitation Act a reasonable attorney's fee as part of the costs”).
Likewise, California law provides that a prevailing party may recover fees for a violation of

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FEHA, “to provide fair compensation to the attorneys involved in the litigation and encourage litigation

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of claims that in the public interest merit litigation.” Chavez v. City of Los Angeles, 47 Cal. 4th 970,

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971 (2010). Accordingly, in relevant part, FEHA provides: “In actions brought under this section, the

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court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including

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expert witness fee.” Cal Gov’t Code § 12965.

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III.

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Discussion and Analysis
A.

Plaintiff’s Status as a Prevailing Party

Under federal law, a “prevailing party” is one that affects “a material alteration of the legal

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relationship between the parties [whereby] the plaintiff becomes entitled to enforce a judgment,

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consent decree, or settlement against the defendant.” Farrar v. Hobby, 506 U.S. 103, 113 (1992).

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Thus, the Supreme Court determined that “settlement agreements enforced through a consent decree

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may serve as the basis for an award of attorney’s fees.” Buckhannon Board & Care Home v. W. Va.

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Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001).

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While, as here, consent decrees may “not always include an admission of liability by the

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defendant… it nonetheless is a court-ordered ‘change in the legal relationship between the plaintiff

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and the defendant.’” Buckhannon Board, 532 at 604 (quoting Texas State Teachers Assoc. v. Garland

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Independent School Dist., 489 U.S. 782, 792 (1989)). Because the parties have entered into a

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settlement to be enforced by the consent decree, there is no dispute that Plaintiff is a prevailing party.

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B.

Fee Award

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The Ninth Circuit utilizes the “lodestar” method to compute reasonable attorneys’ fees, which

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represents the number of hours reasonably expended multiplied by a reasonable hourly rate. Ferland

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v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (citations omitted). The product of

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this computation, the “lodestar” amount, yields a presumptively reasonable fee. Gonzalez v. City of

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Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978

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(9th Cir. 2008).

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In this case, Plaintiff seeks an award of fees in the amount of $194,218.50.1 (Doc. 48 at 11)

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According to Plaintiff, the hours expended by the attorneys and their staff were reasonable. (Doc. 46 at

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3-4) In addition, he asserts the attorneys should be awarded hourly rates from outside the local

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community. (Id. at 3-5) On the other hand, the City asserts “the fees sought by Plaintiff should be

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significantly truncated as they are excessive, duplicative and unnecessary.” (Doc. 47 at 2) Further, the

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City contends, “The rate charged by Plaintiff’s counsel should also be reduced to the rate which reflects

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those charged within the local community… because Plaintiff could have hired local counsel.” (Id.)

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Requested hourly rates

The Supreme Court explained that attorney fees are to be calculated with “the prevailing market

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rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895-96 and n.11 (1984). In general,

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the “relevant community” for purposes of determining the prevailing market rate is the “forum in which

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the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 97 (2008). Thus, when a case

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is filed in the Fresno Division of the Eastern District of California, “[t]he Eastern District of California,

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Fresno Division, is the appropriate forum to establish the lodestar hourly rate . . .” See Jadwin v.

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County of Kern, 767 F.Supp.2d 1069, 1129 (E.D. Cal. 2011).

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However, the Court may apply “rates from outside the forum… ‘if local counsel was

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unavailable, either because they are unwilling or unable to perform because they lack the degree of

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experience, expertise, or specialization required to handle properly the case.’” Barjon v. Dalton, 132

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F.3d 496, 500 (9th Cir. 1997) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)).

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“The court may rely on rates outside the local forum if the plaintiff establishes either unwillingness or

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an inability; ‘[t]here is no requirement that plaintiffs prove both.’” Jadwin, 767 F. Supp. 2d at 1124

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(quoting Barjon, 132 F.3d at 500 [emphasis added]).

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a.

Unavailability

Plaintiff contends local counsel was unavailable because “no attorneys in the Bakersfield area

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specialized in discrimination cases involving Deaf individuals.” (Doc. 46 at 5, citing Tarango Decl.

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[Doc. 46-7]; Jackson Decl. [Doc. 46-8]; Rozynski Decl. ¶¶ 5–6)

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In the motion, Plaintiff indicates that he is seeking an award of $209,218.50. (Doc. 46 at 8) After identifying an
error in the hours reported for Andrew Rozynski, Plaintiff corrected the amount requested in the reply brief to $194,218.50.
(Doc. 48 at 11)

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Plaintiff reports he “needed counsel who understands the unique issues presented by Deafness,

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including communication and cultural issues not readily known to the public or to a practitioner

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without such specialty.” (Doc. 46-7 at 2, Tarango Decl. ¶ 2) He asserts his “search for an attorney that

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possessed the specific skills, experience, specialization and resources to assist … with [his] claims

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against the City of Bakersfield led [him] to the firm of Eisenberg & Baum Law Center for Deaf and

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Hard of Hearing.” (Id., ¶ 3) Plaintiff contends that after contacting Eisenberg & Baum, LLP, he

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contacted the Bakersfield Greater Los Angeles Agency on Deafness, which referred him to an attorney

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in Los Angeles. (Id., ¶ 4) Plaintiff reports he “was not referred to any attorney in Bakersfield.” (Id.)

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Plaintiff asserts that he retained the services of Eisenberg & Baum because it “is committed to

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ensuring that deaf or hard of hearing people receive the protections provided by law.” (Doc. 46-7 at 2,

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Tarango Decl. ¶ 5) He asserts the law firm has “a deaf-friendly office that provides accommodations,

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including sign language interpreters and videophones.” (Id. at 3, ¶ 5) Further, Plaintiff observes that

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the law firm has an “attorney fluent in sign language and a deaf client liaison.” (Id. at 3) According to

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Plaintiff, he “not locate any local Bakersfield attorneys possessing these resources.” (Id.)

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Caroline Jackson, a staff attorney with the National Association for the Deaf (“NAD”), also has

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filed a declaration in support of the fees requested by Plaintiff’s counsel. Ms. Jackson asserts that the

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organization “has been engaged in litigation to enforce the Rehabilitation Act, and subsequently the

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Americans with Disabilities Act (ADA) on behalf of deaf and hard of hearing individuals.” (Doc. 46-8

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at 1, Jackson Decl. ¶ 2) Ms. Jackson reports the NAD “maintain[s] a comprehensive list of attorneys in

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all fifty states who are willing to represent deaf and hard of hearing individuals in lawsuits enforcing

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their rights under the ADA and Rehabilitation Act.” (Id., ¶ 3) According to Ms. Jackson, NAD is

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“frequently… contacted by attorneys from all fifty states who are representing deaf of hard of hearing

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individuals in various capacities.” (Id.) Ms. Jackson asserts NAD is “aware of approximately one

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dozen attorneys in the San Francisco, Los Angeles, and San Diego areas that meet this description,” but

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is “not aware of any attorneys elsewhere in the state that have the qualifications and expertise necessary

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to represent deaf or hard of hearing individuals in ADA and/or Rehabilitation Act cases.” (Id. at 2, ¶ 4)

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On the other hand, Defendant contends Plaintiff fails to demonstrate the unavailability of local
counsel. (Doc. 47 at 2, 12-13) Defendant’s counsel, John Szewczyk, reports he has worked on several
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cases “involving plaintiffs whose claims were premised upon the fact that they suffered alleged

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discrimination based upon the fact that they were deaf.” (Id.) Mr. Szewczyk asserts, “In each of these

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cases the attorneys representing the plaintiffs were able to effectively communicate with their clients

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and conduct the litigation even though they themselves did not use American Sign Language.” (Doc.

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47-3 at 2, ¶ 6) Further, Mr. Szewczyk reports that based upon his “own experience and research,” there

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are numerous different attorneys and firms who have the ability to take on and process claims held by

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plaintiffs claiming discrimination in the employment area.” (Doc. 47 at 12-13) In particular,

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Defendant asserts that “a prominent local attorney whose office is based in Bakersfield, to wit, Thomas

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J. Anton, has significant experience in dealing with individuals with hearing impairments as he is

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related to an individual with such deficits.” (Id. at 13)
Thomas Anton reports that his practice includes “representing plaintiffs in wrongful

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termination, discrimination, harassment and retaliation lawsuits, including claims involving disability

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discrimination.” (Doc. 47-1 at 2, Anton Decl. ¶ 3) Mr. Anton asserts he is “familiar with the

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challenges faced by individuals who have hearing impairments as my son-in-law, Thomas P. Horejes,

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is hearing impaired.” (Id., ¶ 4) Mr. Horejes “has been affiliated with Gallaudet University for a

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number of years, which is a leading institution of higher education that is intimately connected to the

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deaf community in the United States.” (Id.) Mr. Anton reports he is “thus intimately familiar with all

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aspects of the litigation process involving claims of disability discrimination, including claims by

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individuals who are deaf or otherwise hearing impaired.” (Id., ¶ 5)

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i.

Unwillingness

Plaintiff did not contact any local attorneys for representation in this action, and does not report

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that local counsel were unwilling to represent him. (See generally Doc. 46-7) As such, this prong

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weighs against the application of hourly rates from outside the local forum. Barjon, 132 F.3d at 500.

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ii.

Inability

Plaintiff asserts he “needed counsel who understands the unique issues presented by Deafness,

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including communication and cultural issues not readily known to the public or to a practitioner

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without such specialty.” (Doc. 46-7 at 2, Tarango Decl. ¶ 2) In addition, Plaintiff asserts he chose the

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law firm of Eisenberg & Baum because it has “a deaf-friendly office that provides accommodations,
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including sign language interpreters and videophones,” as well as an “attorney fluent in sign language

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and a deaf client liaison.” (Id. at 3, ¶ 5)

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Importantly, Plaintiff fails to identify communication and cultural issues of which local counsel

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lacked knowledge. At most, he identifies potential communication barriers, not concerns about the

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ability of local counsel to prosecute disability discrimination or employment law claims. Further, the

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lack of awareness of local counsel by organizations—which do not explain how they compile lists of

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attorneys who represent deaf individuals or evaluate their qualifications—does not support a conclusion

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that local counsel was unavailable or unable to represent Plaintiff in this action. To the contrary, as

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Defendants observe, local attorneys have represented deaf individuals (Doc. 47 at 12-13), and identified

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an attorney in Bakersfield who is both “intimately familiar” with the challenges faced by the deaf

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community and disability discrimination claims. (Doc. 47-1 at 2, Anton Decl. ¶¶ 3-5)

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Moreover, this Court is well aware of the number cases in the local region that raise disability-

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related claims for violations of the ADA, Rehabilitation Act, and FEHA.2 See, e.g., D’Lil v. Riverboat

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Delta King, Inc., 2015 WL 5092714 at*11 (E.D. Cal. Aug. 28, 2015) (“there is certainly no shortage of

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ADA cases in this district”). Accordingly, the Court finds Plaintiff fails to carry the burden to

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demonstrate local counsel were unable to represent Plaintiff and lacked “the degree of experience,

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expertise, or specialization required” to prosecute the disability discrimination and employment claims

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presented in Plaintiff’s complaint. Barjon, 132 F.3d at 500.

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b.

Rates

Plaintiff seeks hourly rates ranging from $400 to $750 for attorneys, and the rate of $200 per

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hour for non-attorney staff. (Doc. 46 at 6) However, the hourly rates requested by counsel and the

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professional staff are generally not in accord with the market rate for this legal community.

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i.

Attorneys

As the Ninth Circuit observed, “determining an appropriate ‘market rate’ for the services of a
lawyer is inherently difficult ….” Camacho, 523 F.3d at 979 (quoting Blum, 465 U.S. at 895 n. 11). A

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Likewise, this Court is aware of a local law firm representing a deaf individual in an action in a matter before this
Court, alleging violations of the ADA and civil rights. See Trevino v. City of Bakersfield, Case No. 14-cv-1873-JLT, 2016
U.S. Dist. LEXIS 37457 (E.D. Cal. Mar. 21, 2016). Despite the communication barrier, local counsel was able to prosecute
the plaintiff’s claims against the City, defeating a motion for summary judgment and taking the action to trial. (See id.)

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reasonable rate accounts for the lawyer’s “experience, skill, and reputation,” and the rates awarded in

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the legal community in which the Court sits. Id.; Schwarz v. Sec’y of Health & Human Servs., 73 F.3d

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895, 906 (9th Cir. 1995). In evaluating hourly rates, the Court may consider “[a]ffidavits of the

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plaintiffs’ attorneys and other attorneys regarding fees in the community” and hourly rates paid in

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other cases. See United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.

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1990). The Court may apply “either current or historically prevailing rates,” though “the use of current

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rates may be necessary to adjust for inflation if the fee amount would otherwise be unreasonable.”

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Schwarz, 73 F.3d at 908.

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Previously, this Court observed a requested hourly rate of $650 per hour was “high for even the

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most experienced attorneys in the Eastern District.” Ontiveros v. Zamora, 303 F.R.D. 356, 374 (E.D.

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Cal. 2014) (citing Johnson v. Allied Trailer Supply, 2014 WL 1334006, at *5 (E.D. Cal. Apr. 3, 2014);

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Joe Hand Promotions, Inc. v. Albright, 2013 WL 4094403, at *2 (E.D. Cal. Aug. 13, 2013). Rather, the

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Court determined “hourly rates generally accepted in the Fresno Division for competent experienced

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attorneys [are] between $250 and $380, with the highest rates generally reserved for those attorneys

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who are regarded as competent and reputable and who possess in excess of 20 years of experience.”

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Silvester v. Harris, 2014 WL 7239371 at *4 (E.D. Cal. Dec. 2014); see also Trujillo v. Singh, 2017 WL

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1831941 at *2-3 (E.D. Cal. May 8, 2017) (awarding the requested hourly rate of $300 to local counsel

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with 15 years of experience, finding this amount was appropriate for the Fresno Division for an ADA

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case); Miller v. Schmitz, 2014 WL 642729 at *3 (E.D. Cal. Feb. 18, 2014) (awarding $350 per hour for

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an attorney with 20 years of experience). For attorneys with “less than ten years of experience . . . the

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accepted range is between $175 and $300 per hour.”3 Silvester, 2014 WL 7239371 at *4 (citing Willis

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v. City of Fresno, 2014 WL 3563310 (E.D. Cal. July 17, 2014); Gordillo v. Ford Motor Co., 2014 WL

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2801243 (E.D. Cal. June 19, 2014)). With these parameters in mind, the hourly rates for Plaintiff’s

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counsel must be adjusted to calculate the lodestar.

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Andrew Rozynski, lead trial counsel on this action, partner at Eisenberg & Baum, and “the co-

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Notably, the City filed a declaration from Gabriel Godinez, an attorney who maintains his office in Bakersfield,
California. (Doc. 47-2) Mr. Godinez reports he has practiced law for eleven years, and has “been involved in a significant
number of lawsuits involving the representation of plaintiff[s] who have suffered discrimination, harassment and retaliation
within the workplace.” (Id., Godinez Decl. ¶ 3) Mr. Godinez reports he bills $325 per hour for such work (id., ¶ 5), which
is consistent with the Court’s survey regarding the hourly rates within the Fresno Division of the Eastern District.

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director of The Law Center for Deaf and Hard of hearing,” reports that he has “been admitted to the Bar

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of the State of New Jersey since 2012 and to the Bar of the State of New York since 2012.” (Doc. 46-1

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at 1-3, Rozynski Decl. ¶¶ 2-3, 5, 7) Mr. Rozynski seeks an hourly rate of $500 for his work on this

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case, which included “supervis[ing] and review[ing] all litigation activity in this matter, including all

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work performed by the attorneys and staff employed by []his office.” (Id., ¶¶ 3, 7) Mr. Rozynski

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reports he has “litigat[ed] disability discrimination cases for over 200 Deaf plaintiffs nationwide,

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including several large multi-plaintiff cases.” (Id. at 2, ¶ 5) He also reports he is the child of deaf

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parents, and as a result is “fluent in American Sign Language and … intimately familiar with Deaf

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culture.” (Id.) In light of the fact that Mr. Rozynsky has been admitted to the bar for less than six years

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yet has extensive experience with disability discrimination litigation, the Court finds $250 is an

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appropriate hourly rate for Mr. Rozynski. See Silvester, 2014 WL 7239371 at *4.

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Leah Wiederhorn and Brittany Shrader also seek the hourly rate of $500 for their work on the

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action, “which consisted of drafting and reviewing trial submissions and crafting trial strategy.” (Doc.

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46 at 6, Doc. 46-1 at 4-5, Rozynski Decl. ¶¶ 9-10) According to Mr. Rozynski, Ms. Wiederhorn was

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admitted to the bar in 2007, and “has been practicing as a trial lawyer for ten years, with a special

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emphasis on civil rights and public interest.” (Doc. 46-1 at 4, Rozynski Decl. ¶ 9) In addition, he

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reports Ms. Wiederhorn previously “litigated section 1983 cases in federal court and was a Legal Aid

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attorney for seven years” and now “is routinely admitted Pro Hac Vice in federal courts for the purpose

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of litigating discrimination lawsuits on behalf of the deaf and hard of hearing.” (Id.) Ms. Wiederhorn

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“is familiar with [d]eaf culture, has good command of American Sign Language, and has successfully

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litigated cases on behalf of deaf individuals regarding the lack of effective communication and the duty

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to accommodate.” (Id.) In light of the experience Ms. Wiederhorn possesses as a member of the bar

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and litigating discrimination lawsuits, $300 is an appropriate hourly rate. See Silvester, 2014 WL

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7239371 at *4 (noting the Court’s review of hourly rates in the Fresno division indicated the accepted

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rate for up to ten years of experience was “between $175 and $300 per hour”); see also Trujillo, 2017

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WL 1831941 at *2-3 (awarding the rate of $300 per hour in an ADA case to a lawyer with fifteen years

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of experience); Luna v. Hoa Trung Vo, 2011 WL 2078004 at *5 (E.D. Cal. May 25, 2011) (awarding an

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hourly rate of $295 to an attorney who had “exemplary educational credentials” and ten years of
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experience as a lawyer).

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Brittany Shrader “was admitted to the Bar of the State of New York in 2010.” (Doc. 46-1 at 5,

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Rozynski Decl. ¶10) Mr. Rozynski reports that Ms. Shrader “is in her eighth year of practice as a trial

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lawyer, with a special emphasis on civil rights and public interest.” (Id.) According to Mr. Rozynski,

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Ms. Shrader “grew up in … one of the largest Deaf communities in the country,” and “[h]er skills in

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American Sign Language and familiarity with Deaf culture make her uniquely qualified to represent

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Deaf clients.” (Id.) He reports that Ms. Shrader’s “skills have been sought out by members of the Deaf

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community because of her background,” and “[s]he has successfully litigated cases on behalf of deaf

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individuals regarding the lack of effective communication and the duty to accommodate.” (Id.) In light

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of Ms. Shrader’s level of experience, skill, and reputation with the deaf community, $275 is an

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appropriate hourly rate for her work on this action. See Silvester, 2014 WL 7239371 at *4; Trujillo,

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2017 WL 1831941 at *2-3.

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Plaintiff seeks fees at the hourly rate of $400 for the work completed by Philip Black in this

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action (Doc. 46 at 6), which exceeds the amount awarded in this district for lawyers of comparable

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experience. Mr. Black was admitted into the New York Bar in 2014 and the California Bar in 2016.

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(Doc. 46-1 at 3, Rozynski Decl. ¶8) Mr. Rozynski reports, “Mr. Black’s practice has focused primarily

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on representing individuals and advocacy organizations in public service access, public accommodation

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access, fair housing, and employment discrimination matters.” (Id.) Mr. Black’s work on this action

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included “considerable legal research; the composition of pleadings, disclosures, and memoranda; the

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taking of depositions; and the drafting of trial documents.” (Id. at 4, ¶8) Mr. Rozynski notes Mr. Black

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was “previously certified at an hourly rate of approximately $360 per hour in an arbitration award from

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earlier this year,” and Plaintiff “request[s] the modestly higher rate … to account for his additional

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experience and the added complexity of this matter.” (Id.) However, this action was filed in 2016—

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when Mr. Black had practicing for less than two years—and he has very limited experience. Given his

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limited experience, and the lack of information regarding the skills he has developed in this time or his

26

reputation in the legal community, $200 is an appropriate hourly rate for the work Mr. Black completed

27

in this action. See Silvester, 2014 WL 7239371 at *4.

28

The attorneys from Eisenberg & Baum partnered with attorneys at Toni Jaramilla, APLC, on
11

1

this action. (Doc. 46-1 at 3, Rozynski Decl. ¶ 7) Toni Jaramilla reports that she was admitted to the

2

state bar of California in 1994 and has “been practicing law, particularly employment law, for over 22

3

years.” (Doc. 46-5 at 2, Jaramilla Decl. ¶2) Ms. Jaramilla asserts that accomplishments throughout her

4

career have been recognized on both a local and national scale, reporting:

5
6
7
8
9
10
11
12
13
14

Very early in my career, the Los Angeles Daily Journal profiled me on its front page
(October 6, 1998) and featured me again in September 9, 2002 for my successes in my
employment cases and my dedication as a community leader. Through a vote of my peers,
I was selected and featured as a Southern California “RISING STAR” for 2004, an award
given to selected young attorneys (under age of 40 or practicing for less than 10 years)
who have achieved a high degree of peer recognition and professional achievement. In the
following years since, from 2005 to the present year, I was nominated and featured as a
“SUPER LAWYER” in the Los Angeles Magazine and Law & Politics Magazine as a
result of surveys and polling given to attorneys who have personally observed my
knowledge of law and litigation skills. Since 2006 through 2013 and more recently this
year (2017), I have been listed in the publication of “THE BEST LAWYERS IN
AMERICA” as featured in the Los Angeles Times Magazine. I was also profiled in a 2009
article in the Los Angeles Times Magazine entitled “Women Leaders in the Law” and
“Top Women Lawyers” from 2011 through 2013. In addition, I was one of a select few
U.S. employment law attorneys invited to speak before delegates of the Human Rights
Commission of Korea during its efforts to expand Korea’s own anti-discrimination laws.
In 2013, I was nominated for the “Women Making a Difference” Award by the LA
Business Journal. This past year, I received recognition in the Daily Journal as the “Top
75 Labor and Employment Lawyers.”

15

(Id. at 3-4, ¶5) Ms. Jaramilla also served as “Chair of the State Bar’s Labor & Employment Law

16

Section, one of the largest sections of the California State Bar chair,” and “Chair of the California

17

Employment Lawyers Association (CELA), California’s largest and strongest employee rights advocate

18

group comprised of lawyers.” (Id. at 5, ¶¶ 6, 8) In light of both her significant level of experience and

19

excellent reputation, it is appropriate to award Ms. Jaramilla the highest rate in this legal community,

20

$400 per hour. Miller, 2014 WL 642729 at *3 (explaining the $400 per hour range for is reserved for

21

“experienced attorneys”); Silvester, 2014 WL 7239371 at *4 (“the highest rates [are] generally reserved

22

for those attorneys who are regarded as competent and reputable and who possess in excess of 20 years

23

of experience”).

24

May Mallari, a senior associate with Ms. Jaramilla, “seek[s] an hourly rate of $600.” (Doc. 46-

25

5 at 7, Jaramilla Decl. ¶17) Ms. Mallari has been employed by Ms. Jaramilla since her first year of law

26

school in June 1997, and “has been a licensed attorney practicing exclusively in labor and employment

27

matters for over 17 years,” after she was admitted to the bar in June 2000. (Id.) Ms. Jaramilla reports:

28

Ms. Mallari was recognized as a Southern California Rising Star in the Southern
California Super Lawyers Rising Stars Edition published by Los Angeles Magazine and
12

1
2

Law & Politics Magazine (in 2005 and 2006, 2009 and 2010). She has also been a
speaker on panels at various Labor & Employment conferences, including most recently,
presenting on a panel at the California Employment Lawyers Association (CELA)’s
Annual Conference.

3
4

(Id. at 8, ¶18) Thus, from the information provided, Ms. Mallari has over 17 years of legal experience

5

and has established a positive reputation within the legal community for her skills and knowledge.

6

Therefore, the hourly rate of $375 is appropriate for the work completed by Ms. Mallari. See Miller,

7

2014 WL 642729 at *3; Silvester, 2014 WL 7239371 at *4.

8
9

Finally, Francis Agcaoili graduated from law school in the Philippines in 2004 and was
admitted to the California Bar in 2007. (Doc. 46-5 at 8, Jaramilla Decl. ¶ 19) Mr. Agcaoili began

10

working with Ms. Jaramilla as a law clerk in 2004, and became an associate upon his admittance to the

11

Bar. (Id.) Ms. Jaramilla reports that Mr. Agcaoili “has appeared and argued motions before the Los

12

Angeles Superior Court and JAMS Arbitrations,” and “represented clients in mediations and

13

administrative hearings before the Labor Commissioner.” (Id.) In light of his level of experience with

14

employment law, $300 is appropriate for the work Mr. Agcaoili completed in this action. See Trujillo,

15

2017 WL 1831941 at *2-3; Silvester, 2014 WL 7239371 at *4.

16

Based upon the prior survey of attorney fees awarded in the Fresno Division and the Court’s

17

own knowledge, these hourly rates are reasonable for the experience, skill, and reputation of the

18

attorneys who have worked on this action. See Silvester, 2014 WL 7239371 at *4; see also Ingram v.

19

Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (concluding “the district court did not abuse its discretion

20

either by relying, in part, on its own knowledge and experience” to determine reasonable hourly rates).

21
22

ii.

Non-attorney staff

Plaintiff’s counsel calculated their lodestar using hourly rates of $200 for non-attorney support

23

staff. (See Doc. 46 at 5) Generally, paralegal rates within the Fresno Division of the Eastern District

24

range between $75 to approximately $150.00. See, e.g., Monterrubio v. Best Buy Stores, L.P., 291

25

F.R.D. 443, 461 (E.D. Cal. 2013) (“paralegals may be compensated at an hourly rate between $75 and

26

$100”); Moore v. Millenium Acquisitions, LLC, 2017 U.S. Dist. LEXIS 40722, at *8 (E.D. Cal. Mar.

27

21, 2017) (observing that “[j]udges of this court have specifically determined that the reasonable

28

market rate for work performed by paralegals … in other ADA cases is $115 per hour”); Spence v.
13

1

Wells Fargo Bank, N.A., 2012 WL 844713 at *5 (E.D. Cal., Mar. 12, 2012) (approving “paralegal or

2

other support rates” ranging from $125 to $155).

3

Mr. Rozynski reports that his “paralegals and staff performed various paralegal tasks for this

4

matter, including scheduling, preparation of materials for filing or service, etc.” (Doc. 46-1 at 5,

5

Rozynski Decl. ¶11) According to Mr. Rozynski:

8

Ms. Eisenberg-Michalowski is a Deaf individual and co-director of the Law Center
for the Deaf and Hard of Hearing, and she is an invaluable resource as a liaison to our
clients. Ms. Friedman has over two decades of experience with civil rights claims
brought on behalf of deaf individuals. Mr. Acampora is fluent in American Sign
Language.

9

(Id. at 5-6, ¶11) Therefore, Plaintiff’s counsel “request[s] a rate of $200 per hour for [the] paralegal

6
7

10
11

and support staff.” (Id.; see also Doc. 46 at 6)
Notably, based upon the limited information provided, the Court is unable to determine which

12

of the individuals are paralegals compared to support staff. Moreover, Mr. Rozynski fails to provide

13

any information regarding the qualifications or experience of Dina Valmon. (See Doc. 46-1 at 5-6)

14

Previously, this Court determined if the plaintiff “failed to present any evidence of [the individual’s]

15

qualifications and experience,” then “the court must deny any recovery for the alleged paralegal’s

16

time.” Davis v. Hollins Law, 25 F. Supp. 3d 1292, 1301 (E.D. Cal. 2014) (emphasis in original). Thus,

17

the Court declines regarding Ms. Valmon’s experience, and will decline to determine an hourly rate or

18

award fees for her work.4

19

In light of Ms. Friedman’s experience of over twenty years, the highest hourly rate of $155 is

20

appropriate. See Spence, 2012 WL 844713 at *5. For Ms. Eisenberg-Michalowski and Mr.

21

Acampora—who served as a client liaisons and are fluent in American Sign Language—the Court

22

adopts the hourly rate of $115, which has recently awarded to paralegals in ADA actions within the

23

Fresno Division. See Moore, 2017 U.S. Dist. LEXIS 40722, at *8; Trujillo, 2017 WL 1831941 at *1.

24

Based upon the prior survey of hourly rates and its own knowledge, these hourly rates are reasonable

25

for the work of paralegals and support staff in the Fresno Division. See Ingram, 647 F.3d at 928.

26
27
28

4

Moreover, the Court’s review of the billing records indicates that Ms. Valmon performed clerical tasks including
document review and Bate stamping exhibits (see, e.g., Doc. 46-2 at 16-17), which is not compensable. See Nadarajah v.
Holder, 569 F.3d 906, 921 (9th Cir. 2009) (work that is “clerical in nature … should [be] subsumed in firm overhead rather
than billed” and is therefore not recoverable).

14

2.

1
2

Hours expended

As noted above, the Ninth Circuit uses the “lodestar” method to compute reasonable attorneys’

3

fees, which requires multiplying the number of hours reasonably expended in the action by the

4

reasonable hourly rates for counsel and support staff. Ferland, 244 F.3d at 1149 n.4. A fee applicant

5

“bears the burden of … documenting the appropriate hours expended.” Hensley v. Eckerhart, 461 U.S.

6

424, 424 (1983); Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Once the

7

moving party provides such evidence, “the opposing party has the burden of submitting evidence

8

‘challenging the accuracy and reasonableness of the hours charged or the facts asserted by the

9

prevailing party in its submitted affidavits.’”5 Rodriguez v. Barrita, Inc., 53 F. Supp. 3d 1268, 1280

10
11

(N.D. Cal. 2014) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)).
Plaintiff asserts his attorneys expended 391.56 hours on the action, and has provided billing

12

records for the firms that worked on the action.6 (See Doc. 46 at 3-4; Doc. 48 at 11) On the other

13

hand, the City contends the number of hours expended were not reasonable, and asserts the “Court

14

should carefully scrutinize [the] fee application,” particularly given the number of attorneys who

15

worked on the action. The City contends many hours reported were “excessive, duplicative and

16

unnecessary.” (Doc. 47 at 4, citing Arrieta-Colon v. Wal Mart Store, Inc., 422 F.Supp.2d 331, 334

17

(D.P.R. 2006) (emphasis omitted)) The Court addresses each of the objections raised in turn.
a.

18

The administrative complaint

19

The City observes that “Plaintiff’s counsel expended in excess of 5 hours in connection with the

20

filing of an administrative complaint with the EEOC,” which was a two-page document. (Doc. 47 at 5;

21

see also Doc. 47-3 at 27-28) According to the City, “An experienced attorney can complete this task

22

relatively easily and therefore, the alleged time spent in pursuit of this action is excessive, unwarranted

23

and demonstrates unnecessary duplication of efforts.” (Doc. 47 at 5) Specifically, the City challenges

24
5

25
26
27
28

Even if a fee request is unopposed, the Court must review the time billed and assess whether it is reasonable in
light of the work performed and the context of the case. See Common Cause v. Jones, 235 F. Supp. 2d 1076, 1079 (C.D.
Cal. 2002); see also McGrath v. County of Nevada, 67 F.3d 248, 254 n.5 (9th Cir. 1995) (noting a court may not adopt
representations regarding the reasonableness of time expended without independently reviewing the record); Sealy, Inc. v.
Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir. 1984) (remanding an action for a thorough inquiry on the fee request where
“the district court engaged in the ‘regrettable practice’ of adopting the findings drafted by the prevailing party wholesale”
and explaining a court should not “accept[] uncritically [the] representations concerning the time expended”).
6
In the motion, Plaintiff indicated his attorneys spent a total of 421.56 hours in the action. (Doc. 46 at 3-4)
However, in the reply, Plaintiff indicates 30 hours should be deducted due to an error in the number of hours traveled by
Mr. Rozynski, which results in a total of 391.56. (Doc. 48 at 11)

15

1

the total time expended on the following actions related to the EEOC charge:

10

DATE
3/13/2015
4/23/2015
5/4/2015
5/4/2015
5/19/2015
5/26/2015
5/29/2015
6/3/2015
6/17/2015
6/17/2015
6/17/2015
6/29/2015
7/27/2015
8/25/2015
1/27/2016

11

(Doc. 47-3 at 4)

2
3
4
5
6
7
8
9

12

ATTORNEY
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Black
Black
Black
Agcaoili
Agcaoili
Agcaoili
Agcaoili
Agcaoili
Agcaoili
Jaramilla

TASK
Review EEOC Complaint
Review EEOC Docs
Prepare client for EEOC
EEOC Call
Edit EEOC charge
Evaluate EEOC charge
Edit to EEOC charge
Compose Charge letter
Convo with EEOC
Revise EEOC Charge
Email Rozynski re revised Charge
EEOC charge docs
Call to EEOC
Email to EEOC re charge
Review EEOC Complaint

TIME
0.40
0.10
1.00
0.50
0.30
0.20
0.50
0.90
0.17
0.20
0.08
0.25
0.08
0.25
0.25

Mr. Szewczyk asserts that he is “intimately familiar with the process by which complaints are

13

filed with the EEOC and FEHA officers in California having done so in the past and by and through

14

responding to the same.” (Doc. 4-3 at 4, Szewczyk Decl. ¶10) He asserts: “experienced attorneys will

15

go into the EEOC/FEHA process with a draft complaint that the agency will then utilize. Compilation

16

of a short and distinct claim is relatively easy to accomplish with a draft complaint when meeting with

17

the EEOC/FEHA officers.” (Id. at 5, ¶10)

18

Notably, Defendant’s objections as to the time expended on the EEOC charge appears to be

19

based upon the amount of time Mr. Szewczyk believes “experienced attorneys” would spend on the

20

charge. However, Plaintiff’s attorneys who worked on the EEOC complaint do not have the same level

21

of experience of Mr. Szewczyk. For example, Mr. Rozynski began working on this action when he had

22

been practicing law for approximately three years, and Mr. Black had been admitted to the Bar for only

23

one year. Thus, it is not unreasonable to expect that additional time was required to prepare the EEOC

24

charge compared to an attorney with significant experience. Regardless, the time expended by counsel

25

to draft the EEOC charge was not excessive. See, e.g., Jadwin, 767 F. Supp. 2d at 1116 (awarding 18

26

hours for tasks related to administrative filings).

27

b.

28

Communications between co-counsel

The City asserts that “duplication and unnecessary efforts can be seen in connection with the
16

1

time expended by counsel for both firms relating to communications between their offices and

2

coordination of events which arose in the prosecution of the case.” (Doc. 47 at 5) As the City

3

observes, “Where excessive time is spent by counsel with each other, a court is likely to reduce the time

4

as excessive.” (Id., citing Carr v. Fort Morgan Sch. Dist., 4 F. Supp. 2d 999, 1003 (D. Colo. 1998)

5

(holding a 30% reduction was reasonable “to account for the excessive time spent by counsel with their

6

client and each other” and other “time questionably spent”). Thus, the City asserts 13.22 hours it

7

identified as communications between Plaintiff’s co-counsel should be deducted from the lodestar

8

calculation as duplicative and excessive. (Doc. 47 at 5; Doc. 47-3 at 5, Szewczyk Decl. ¶11) In reply,

9

Plaintiff’s counsel asserts that “thirteen hours of inter-office communications over the span of two

10

years of litigation, part of which included trial preparations, is eminently reasonable under the

11

circumstances.” (Doc. 48 at 7, emphasis omitted)

12

Notably, the Ninth Circuit has “recognized that ‘the participation of more than one attorney

13

does not necessarily constitute an unnecessary duplication of effort.’” McGrath v. County of Nevada,

14

67 F.3d 248, 256 (1995) (quoting Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 1989)). However,

15

in general, two attorneys cannot bill for communicating with each other, as such time is duplicative and

16

unnecessary. In re Mullins, 84 F.3d 459, 467, 318 U.S. App. D.C. 19 (D.C. Cir. 1996); Robinson v.

17

Plourde, 717 F. Supp. 2d 1092, 1099 (D. Haw. 2010).

18

Moreover, as this Court previously observed, “many courts have … reduced fee awards for time

19

spent in ‘interoffice conferences’ or other internal communications.” Gauchat-Hargis v. Forest River,

20

Inc., 2013 WL 4828594 at *3 (E.D. Cal. Sept. 9, 2013) citing, e.g., Mogck v. Unum Life Ins. Co. of Am.,

21

289 F.Supp.2d 1181, 1194 (S.D. Cal. 2003) (reducing the fee award upon finding the attorneys “billed

22

an inordinate amount of time for interoffice conferences”); Coles v. City of Oakland, 2007 WL 39304,

23

at *10 (N.D. Cal. Jan. 4, 2007) (“[c]laiming a disproportionate number of hours for communication

24

between attorneys may indicate unreasonable overstaffing such that a reduction in hours is

25

appropriate”); Gibson v. City of Chicago, 873 F.Supp.2d 975, 987 (N.D.Ill. 2012) (eliminating time

26

entries for duplicative tasks).

27

Here, as the City asserts, there are a significant number of billing entries for time spent on

28
17

1

internal communications and conferences among co-counsel, including7:
DATE
2/20/2015
2/24/2015
3/4/2015
3/16/2015
3/23/2015
5/6/2015
5/15/2015
5/28/2015
6/1/2015
6/2/2015
6/5/2015
6/17/2015
6/17/2015
6/26/2015
8/25/2015
9/3/2015
9/28/2015
10/16/2015
11/6/2015
11/20/2015
11/23/2015
11/24/2015
12/3/2017
12/9/2015

ATTORNEY
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Agcaoili
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Rozynski
Mallari
Rozynski
Mallari
Mallari
Mallari

12/21/2015
1/11/2016
1/14/2016
1/29/2016
2/11/2016
2/12/2016
2/12/2016
3/11/2016

Mallari
Jaramilla
Rozynski
Rozynski
Mallari
Mallari
Mallari
Mallari

21

3/15/2016
3/16/2016

Mallari
Black

22

3/18/2016

Mallari

23

3/22/2016
3/22/2016

Black
Mallari

25

3/23/2016
3/23/2016

Mallari
Mallari

26

3/23/2016

Mallari

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

24

TASK
Pre Consultation Meeting with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Email Rozynski re Revised Charge
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
Email to co-counsel AR re Complt
Correspondence with Co-Counsel
tcw co-counsel A. Rozynski re case status
Email to co-counsel AR and PH re draft complaint
Email to co-counsel E. Baum and A. Rozynski re ph.
conf.
tcw co-counsel A. Rozynski re venue for filing complt
tcw co-counsel
Correspondence with Co-Counsel
Correspondence with Co-Counsel
tcw co-counsel AR re magistrate judge
twc co-counsel AR re magistrate judge (consent to jxn)
Email to co-counsel AR and EB re magistrate judge
Rev’d and resp to email from co-counsel PB re
scheduling conf.
tcw co-counsel PB re joint report
Correspondence with co-counsel and opposing counsel
regarding 26(f) report
Rev’d and revised draft of joint report; emails with cocounsel PH and AR
Correspondence with co-counsel[]
twc co-counsel AR and PB Joint Scheduling
Conf/Report
Email to co-counsel PB and AR re Tarango case facts
Rev’d and resp to email from co-counsel PB re joint
scheduling report
Rev’d and resp to email from co-counsel PB re joint

TIME
1.00
0.30
0.30
0.10
0.20
0.20
0.20
0.20
0.10
0.20
0.20
0.10
0.08
0.20
0.10
0.10
0.10
0.10
0.10
0.08
0.30
0.17
0.08
0.08
0.33
0.50
0.20
0.10
0.17
0.17
0.08
0.08
0.08
0.50
1.25
0.10
0.08
0.08
0.08
0.08

27
28

7
The City did not identify the specific time entries it challenged as interoffice conferences or communications
between co-counsel. Based upon the Court’s review of the billing records, it appears the City only addressed the time billed
by Eisenberg & Baum. However, the entries from Toni Jaramilla APLC also include a significant number of conferences.

18

1
3/23/2016

Mallari

4/20/2016
5/23/2016

Black
Black

5/23/2016
6/13/2016
6/30/2016
7/1/2016
7/7/2016
7/20/2016
8/1/2016
8/2/2016
8/25/2016
8/26/2016

Mallari
Mallari
Mallari
Mallari
Mallari
Mallari
Black
Black
Black
Black

9/13/2016
9/14/2016
9/20/2016
9/20/2016
10/18/2016
10/18/2016
10/20/2016
10/28/2016

Mallari
Mallari
Black
Mallari
Black
Mallari
Mallari
Black

11/1/2016

Mallari

11/2/2016
11/3/2016
11/3/2016

Rozynski
Mallari
Mallari

11/3/2016
11/3/2016

Mallari
Mallari

11/28/2016
11/29/2016
12/6/2016

Mallari
Mallari
Black

1/30/2017
2/2/2017
2/3/2017

Mallari
Mallari
Black

2/3/2017

Mallari

2/3/2017
2/27/2017
2/27/2017
2/27/2017

Mallari
Black
Mallari
Black

2/27/2017
2/27/2017
2/28/2017

Mallari
Jaramilla
Mallari

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

scheduling report
Rev’d and resp to email from co-counsel PB re joint
scheduling report
Call with May Mallari
Edits to discovery requests and call with cocounsel
regarding same
twc co-counsel P. Black re discovery requests
tcw PB re status on discovery/depos.
Email to co-counsel PB re depositions
twc co-counsel PB re discovery; depos.
Email to co-counsel PB re status of depos[.]
Rev’d and resp to email from co-counsel PB
Email to co-counsel re settlement demand
Correspondence with co-counsel
Correspondence with co-counsel
Correspondence with cocounsel re conference
scheduled for Monday
Email to co-counsel re client meeting
Rev’d and resp to email from co-counsel PB
Call with May Mallari
tcw PB re case status; discovery
Call with May Mallari
tcw co-counsel PB re client’s discovery responses
Email to co-counsel re discovery
Internal correspondence re Plaintiff’s discovery
responses
Rev’d and resp to email from co-counsel PB re
discovery
Phone Call with Co-Counsel
Email to co-counsel Sheryl re discovery
Rev’d and resp to email from co-counsel Sheryl re
discovery
Rev’d and resp to email from co-counsel re discovery
Rev’d and resp to email from co-counsel Sheryl re
discovery
Rev’d and resp to email from co-counsel PB
tcw co-counsel PB re status; discovery
Research and correspondence with co-counsel re Rule
34 request
tcw co-counsel PB re case status
Rev’d and resp to email from co-counsel PB
Reviewing and internal communications re stipulation
to extend discovery and proposed injunctive relief
Email to co-counsel PB and AR re stip and settlement
proposal on accomodations
Rev’d and resp to email from co-counsel PB
Email with co-counsel re settlement strategy
Email to co-counsel re damages calculations
Meeting with Andrew R and editing proposed policy
changes list
tcw co-counsel PB and AR and TJJ re settlement
Phone conference with co-counsel re strategy
Email to co-counsel re damages calculations

19

0.08
0.20
1.10
0.17
0.08
0.08
0.08
0.08
0.08
0.10
0.10
0.10
0.10
0.08
0.08
0.20
0.17
0.20
0.25
0.08
0.40
0.08
0.30
0.08
0.08
0.08
0.08
0.08
0.33
0.50
0.17
0.08
0.50
0.08
0.08
0.10
0.08
0.50
0.50
0.40
0.08

3/2/2017
3/2/2017
3/6/2017
3/13/2017
3/17/2017

Mallari
Mallari
Mallari
Mallari
Mallari

5

4/10/2017
4/26/2017
5/10/2017

Rozynski
Black
Black

6

5/22/2017

Black

7

5/25/2017

Black

8

6/15/2017

Mallari

6/19/2017
6/19/2017

Mallari
Mallari

6/22/2017
6/26/2017
6/26/2017
7/6/2017
7/7/2017
7/7/2017

Mallari
Mallari
Mallari
Black
Jaramilla
Black

7/10/2017
7/11/2017
7/14/2017
7/18/2017

Black
Black
Black
Shrader

7/18/2017
7/18/2017

Mallari
Black

7/20/2017
7/20/2017
7/21/2017

Jaramilla
Black
Jaramilla

23

7/26/2017
8/1/2017
8/2/2017

Black
Mallari
Mallari

24

8/31/2017

Black

1
2
3
4

9
10
11
12
13
14
15
16
17
18
19
20
21
22

Email to co-counsel re mediators
Rev’d and resp to email from co-counsel re mediators
Email to co-counsel re mediation dates
Email to co-counsel re me
Rev’d and resp to email from co-counsel PB re
mediation
Call with Co-Counsel
Deadlines discussion with Greg A.
Call with John S. re settlement; discussion of proposal
with Andrew R and Eric B.
Call with opposing counsel and internal discussion re:
settlement offer
Call with John S. and discussion with Andrew R re
same
Email to co-counsel PB re preparing Jt. Pretrial
Statement
Email to co-counsel PB re Jt. Pretrial Statement
Rev’d and resp to email from co-counsel PB re Jt.
Pretrial Statement
Email to team re Jt. Pretrial Statement
Rev’d and resp to co-counsel PB re Pretrial Statement
Email to co-counsel PB re pre-trial docs
Email to co-counsel re: pretrial conference appearance
Discuss trial strategies with co-counsel
Conversations with AR, LW, and BS re: pretrial
conference and case strategy
Phone call with Andrew R.
Discussions with Andrew R.
Call with Andrew R regarding case strategy
Discussed pre-trial concerns with Lea Wiederhorn and
Phil including exhibit list and objects, jury
instructions, verdict sheets, and trial strategies
Email to co-counsel PB re pre-trial docs
Meeting with LW and BS re jury instructions and other
pretrial preparation
Discussion with co-counsel re: strategy
Discussion of trial strategy with LW
Discussion with co-counsel regarding trial strategy,
settlement, lineup of witnesses, and other pre-trial
motions and matters
Collaboration with LW and edits to stipulations
Email to co-counsel PB and AR
Email to co-counsel AR and PB re stipulation re
settlement
Review of settlement agreement, new version, and
email to co-counsel re: same

0.08
0.08
0.08
0.08
0.08
0.50
0.10
0.40
0.30
0.20
0.08
0.08
0.08
0.17
0.08
0.08
0.10
0.75
1.80
0.40
0.60
0.20
0.90
0.08
0.90
2.00
0.50
1.00
1.50
0.08
0.08
0.30

25
26

(Doc. 46-2; Doc. 46-6 [emphasis added]) Thus, there are 30.94 hours of billed time that include entries

27
28
20

1

related to interoffice conferences and communications.8 Based upon the review of the record, the Court

2

finds the time expended should be reduced by 5.2 hours for Andrew Rozynski, 8.26 hours for Philip

3

Black, 0.9 hours for Brittany Shrader, 0.08 hours for Francis Agcaoili, 5.81 hours for May Mallari, and

4

4.65 hours for Toni Jaramilla.9
c.

5

Drafting of the complaint

6

The City asserts the time expended “drafting the Complaint … also reflects unnecessary and

7

duplicative efforts” and “excessive billing practices.” (Doc. 47 at 6) According to the City, because

8

Plaintiff’s counsel “spent approximately 9.6 hours interviewing Plaintiff and gathering the facts of this

9

matter prior to filing the EEOC Complaint, and another 5 hours in the EEOC process,” they “should

10

have been readily familiar with the relevant facts.” (Id.) The City contends this familiarity should

11

have “substantially decreas[ed] the amount of time spent working on the Complaint.” (Id.)

12

The City also argues the time is excessive because “Plaintiff’s counsel is using a form

13

complaint for these types of cases.” (Doc. 47 at 6) In support of this assertion, the City points to the

14

complaint in Laura Roberts v. Starbucks Coffee Company, Case No. 2:15-cv-02607-NVW, which the

15

City asserts “showcases nearly identical charging allegations and claims” and was “filed by Andrew

16

Rozynski and the Eisenberg Firm as Pro Hac Vice in the United States District Court for the District of

17

Arizona.”10 (Id., citing Szewczyk Decl., Exh. B [Doc. 47-3 at 30-59]) The City acknowledges that the

18

“factual allegations are different,” but asserts “it is manifestly clear that such factual circumstances

19

would not consume the time amounts allegedly expended in the drafting of the instant Complaint,

20

especially since Plaintiff’s counsel had spent such a large of time interviewing Plaintiff and gathering

21

facts prior to commencing work on the Complaint.” (Id.)

22
23
24
25
26
27
28

Notably, the complaint in Roberts was not signed by an attorney from Eisenberg & Baum LLP,
8

Notably, additional billing entries strongly suggest the e-mails sent by counsel were interoffice communications.
(See, e.g., Doc. 46-2 at 13) However, the Court will not disturb the hours reported related to communications where the
recipient of an email is not clearly identified as co-counsel.
9
For entries where the only task listed was a conference, the entirety of the time was deducted. For the entries
including both interoffice communications and other tasks, the Court reduced the time reported by twenty percent. See
Dubose v. Cnty. of L.A., WL 2135293, at *5 (C.D. Cal. June 11, 2012) (reducing billings by 20 percent due in part to vague
time entries and excessive entries for communications between counsel); see also Lahiri v. Universal Music & Video
Distrib. Corp., 606 F.3d 1216, 1222-23 (9th Cir. 2010) (upholding 30 percent reduction of 80 percent of billable hours to
account for block-billing).
10
The City does not request that the Court take judicial notice of the complaint. Nevertheless, judicial notice may
be taken of undisputed matters of public record, including documents on file in federal or state courts. See Harris v. County
of Orange, 682 F.3d 1126, 1131-32 (2012). Although the Court declines to take judicial notice of the facts presented in the
complaint, judicial notice is taken of the claims and the manner in which the allegations were presented.

21

1

but rather was signed by Sarah Weimer from the Arizona Center for Disability Law. (Doc. 47-3 at 58)

2

In addition, the Roberts complaint includes significant differences to the complaint filed by Plaintiff’s

3

counsel in this action. For example, Roberts raised only claims arising under federal law, while the

4

instant action includes claims arising under California law. (Compare Doc. 1 at 2, ¶ 2 with Doc. 47-3

5

at 31-32, ¶¶ 1-2) Further the factual allegations in each complaint are specific to each plaintiff and the

6

alleged violations suffered in their workplaces. (See generally Doc. 1, Doc. 47-3 at 30-59) Finally, the

7

difference in page length strongly suggests counsel did not use a form complaint, as the pleading in this

8

action was fourteen pages, while the complaint in Roberts was nearly 30 pages. (Id.) Accordingly, the

9

Court is not persuaded a form complaint was used, and hours will not be reduced on these grounds.

10

Moreover, the Court’s review of the billing records submitted by Plaintiff does not reveal an

11

excessive amount of time spent by counsel on drafting or revising the complaint. Rather, the time

12

expended by counsel appears reasonable, and no deductions are warranted.
d.

13
14

Venue and local court issues

The City argues that “the time expended by Plaintiff’s counsel on venue and local court issues

15

[was] excessive,” and this was due to “the lack of local experience on the part of counsel chosen by

16

Plaintiff.” (Doc. 47 at 7, emphasis omitted) The City observes Plaintiff’s counsel spent “a full four (4)

17

hours of time on calls with local attorneys (to wit, Emilio Huerta, Randy Rumph and Paul LaFranchise)

18

with regard to venue issues and local court rules, along with duplicative additional discussions between

19

co-counsel on the same or similar issues.” (Id.) Specifically, the time the City challenges as

20

“unwarranted” includes 3.89 hours on the following tasks:
DATE
12/7/2015

ATTORNEY
Mallari

12/9/2015

Mallari

12/9/2015

21

Mallari

12/9/2015

Mallari

12/21/2015

Mallari

1/11/2016
1/21/2016
2/11/2016
2/11/2016

Black
Rozynski
Mallari
Mallari

22
23
24
25
26
27
28

TASK
tcw Emilio Huerta (CELA member) re
Bakersfield venue
tcw Randy Rumph (CELA member) re
Bakersfield venue
Email to co-counsel E. Baum and A. Rozynski re
ph. Conf.
tcw Paul LaFranchise (CELA member) re
Bakersfield venue
tcw co-counsel A. Rozynski re venue for filing
complt.
Discussion regarding federal vs state venue
Research on Local Rules CAED
tcw co-counsel AR re magistrate judge
Email to CELA member R. Rumph

22

TIME
0.50
0.42
0.08
0.33
0.33
0.90
0.50
0.17
0.08

1

2/11/2016

Mallari

tcw CELA member Randy Rumph re federal
venue

0.58

2
3

(Doc. 47-3 at 6-7; Doc. 46-2 at 5; Doc. 46-6 at 2) In response, Plaintiff asserts, “a few hours’ time

4

spent coordinating efforts between attorneys, ensuring familiarity with local rules and procedures, and

5

other procedural strategy discussions were warranted so that this case would proceed smoothly (which

6

it did, without any dispute ever requiring the Court’s attention).” (Doc. 48 at 7, citation omitted)

7

Above, the Court deducted 0.58 for the communications that occurred among co-counsel

8

regarding venue, which leaves 3.31 hours related to venue and the local rules. This remaining time,

9

including consulting with other attorneys who have local experience, does not appear excessive.11

10

e.

Pro hac vice motions

11

The City contends, “Any and all charges and discussions relating to Pro Hac Vice Motions

12

should be eliminated as unnecessary since Plaintiff could have used local counsel.” (Doc. 47 at 7)

13

Therefore, the City argues “an entry in the amount of .50 hours by attorney Andrew Rozynski of the

14

Eisenberg Firm …should be struck.”12 (Id.)

15

In general, “whether to award attorney’s fees for a pro hac vice motion” is a matter committed

16

to the Court’s discretion. See Access 4 All, Inc. v. 135 W. Sunrise Realty Corp., 2008 WL 4453221,

17

*11 (E.D.N.Y. Sept. 30, 2008). However, district courts in the Ninth Circuit do not often award

18

attorney’s fees—or costs—associated with pro hac vice admission. See, e.g., Raduga U.S.A. Corp. v.

19

United States Dep’t of State, 2006 WL 1305216 at *5 (S.D. Cal. Feb. 17, 2006) (holding the court

20

“will not award fees for time spent pursuing pro hac vice admittance” where there was “no reason why

21

someone local could not have handled the case”); Trauth v. Spearmint Rhino Cos. Worldwide, 2012

22

WL 12893448 (C.D. Cal. Nov. 7, 2012) (reducing the fee award for time expended on the preparation

23

of pro hac vice applications). Accordingly, the Court will reduce the fee award for Mr. Rozynski by

24

0.5 hours for the time reported on his pro hac vice application.

25
26
27
28

11
Consultation with several local attorneys who are members of California Employment Lawyers Association
supports the conclusion that local counsel had the ability to prosecute the discrimination and employment claims raised by
Plaintiff in this action.
12
The City also asserts “additional non- described communications which seemingly reference [pro hac vice
applications] around the same time period” should be stricken. Because the Court addressed the communications among cocounsel above, the analysis here is focused on the time reported for completing the application.

23

f.

1

The joint scheduling report

2

The City objects to the amount of time expended by Plaintiff’s counsel in preparation of the

3

joint scheduling report. (Doc. 47 at 8) According to the City, the billing records “show duplicative

4

and unnecessary efforts by the four (4) attorneys working on the matter.” (Id., emphasis omitted)

5

Therefore, the City challenges the following time entries:

7

DATE
3/7/2016
3/11/2016

ATTORNEY
Jaramilla
Mallari

8

3/16/2016

Black

9

3/18/2016

Mallari

10

3/18/2016
3/18/2016
3/18/2016
3/22/2016

Black
Rozynski
Rozynski
Mallari

3/23/2016

Mallari

14

3/23/2016

Mallari

15

3/23/2016

Mallari

16

3/23/2016
3/25/2016
3/25/2016

Black
Rozynski
Black

6

11
12
13

17

TASK
Rev’d draft of Joint Scheduling Rpt
Rev’d and resp to email from co-counsel PB re
scheduling conf.
Correspondence with co-counsel and opposing
counsel regarding 26(f) report
Rev’d and revised draft of joint report; emails
with co-counsel PH and AR
Scheduling 26(f) report
26(f) Report
Joint Scheduling Order
tcw co-counsel AR and PB re Joint Scheduling
Conf/Report
Rev’d and resp to email from co-counse[l] PB re
joint scheduling report
Rev’d and resp to email from co-counsel PB re
joint scheduling report
Rev’d and resp to email from co-counsel PB re
joint scheduling report
26(f) report correspondence and edits
Finalize Joint Scheduling Report
Filing joint scheduling report

TIME
0.50
0.08
0.50
1.25
1.10
0.20
0.30
0.08
0.08
0.08
0.08
1.30
0.20
0.40

18

(Doc. 47-3 at 8; Doc. 42 at 6; Doc. 46-6 at 3, 9) Thus, the City identifies billing entries totaling 6.15

19

hours related to the joint scheduling report, and argues a review of the document “reveals nothing that

20

should have necessitated such large amount of time spent on it.” (Doc. 47 at 8)

21

Notably, above, the Court deducted 0.75 for communications that occurred among co-counsel

22

regarding the joint scheduling report. In addition, the Court will deduct 0.40 hours for the filing of the

23

document by Mr. Black, as filing is a purely clerical task that should be excluded from the lodestar

24

calculation. See Nadarajah, 569 F.3d at 921; see also Harris v. L & L Wings, Inc., 132 F.3d 978, 985

25

(4th Cir. 1997) (approving the court’s elimination of hours spent on clerical tasks from the lodestar

26

calculation); Jones v. Metropolitan Life Ins. Co., 845 F. Supp. 2d 1016, 1027 (N.D. Cal. 2012)

27

(discounting time for “filing or retrieving electronic court documents or copying”).

28

With the above deductions, 5.0 hours remain for the preparation of the joint scheduling report.
24

1

Although this amount of time is much greater than the amount Mr. Szewczyk reports he spent on the

2

City’s portion of the document (Doc. 47-3 at 8, ¶ 16), the Court does not find this amount to be

3

unreasonable. Therefore, the Court will not further reduce the lodestar for the preparation of the joint

4

scheduling report.
g.

5

Initial disclosures

6

The City asserts the 3.75 hours expended by Plaintiff’s counsel on the initial disclosures were

7

“unnecessary and excessive.” (Doc. 47 at 6, emphasis omitted) According to the City, “A review of

8

these documents reveals that it contains a list of witnesses with the same rote description of what

9

information they may have relative to the case; a paragraph of the damages claimed, and a note re lack

10

of insurance.” (Id.) In addition, the City contends: “The time entries for these documents reveal that

11

multiple attorneys worked on this document even though the bulk of the work was done early in the

12

process.” (Id.)

13

On the other hand, as the City acknowledges, Plaintiff’s initial disclosures totaled thirty pages.

14

(See Doc. 47-3 at 9, Szewczyk Decl. ¶ 17, Doc. 47-3 at 61-98) The disclosures included list of 22

15

witnesses as well as exhibits, such as the EEOC documents, emails, memos, and a job description. (See

16

id. at 61-68) The 3.75 hours to compile the information and exhibits were not excessive, and the Court

17

declines to reduce the fee award for preparation of the initial disclosures.

18

h.

Discovery

19

The City “served written discovery on Plaintiff consisting of Request for Admissions, Special

20

Interrogatories, and Request for Production of Documents.” (Doc. 47 at 8) According to Defendant,

21

the 42 hours expended on discovery was “unnecessary and excessive” because “[a] review of the

22

discovery requests and Plaintiff’s counsel’s objections reveal a complete lack of effort in responding

23

to the discovery.” (Id., emphasis omitted)

24

In reply, Plaintiff asserts that “[t]he time spent on these items was justified.” (Doc. 49 at 8)

25

Plaintiff contends: Defendant’s written discovery requests included 53 requests for production, 23

26

interrogatories, and 72 requests for admission. (Id.) Plaintiff argues that “Defendant is being

27

somewhat hypocritical in blaming [counsel] for spending many hours responding to such a large,

28

duplicative, and unnecessary number of requests.” (Id.)
25

1

Notably, nearly 16 hours expended by counsel related to discovery involved communications

2

with Plaintiff, whether via video conference or email. (See Doc. 46-2 at 9-11; Doc. 46-6 at 4-6) In

3

addition, the Court deducted 1.06 hours for the internal communications that occurred among co-

4

counsel related to discovery. The Court does not find the 25 hours expended to review documents

5

provided by Plaintiff or prepare the written responses to discovery were excessive in light of the

6

number of requests served by the City. Consequently, no additional deductions will be made to the

7

lodestar for the hours counsel expended on discovery.

8

i.

Depositions

9

According to the City, “the billing entries submitted by Plaintiff for depositions conducted in

10

this matter contain multiple irregularities.” (Doc. 47 at 9) Mr. Szewczyk reports that he was present

11

for each deposition, and “[t]he deposition of Mr. Miguel Raya ran from 9:00 a.m. to 11:40 a.m., with

12

one break.” (Id.) Defendant contends “the entire time spent on the deposition was 2.70 hours and not

13

2.90 hours as billed by Plaintiff’s counsel.” (Id., emphasis omitted) In addition, the City reports: “The

14

deposition of Plaintiff ran from 9:55 a.m. to 4:06 p.m. Factoring in the lunch period, the time spent for

15

the deposition was only 5.4 hours, yet the charge for the deposition is 8 hours.” (Id., citations omitted)

16

The City also questions the 2.0 hours billed by Mr. Rozynski for deposition preparation the same day as

17

Plaintiff was deposed because “he did not participate in the deposition” (id.) and “did not ask questions

18

during the deposition of his own client.” (Doc. 47-3 at 12, ¶ 20) Further, the City contends counsel

19

engaged in “double billing” as Mr. Black billed 4.9 hours for deposition preparation the same date as he

20

traveled 11.10 hours. (Doc. 47 at 9)

21

In response, Plaintiff argues that “Defendant’s disputes on this topic are speculative and

22

unwarranted,” and there are no errors related to the billing entries identified by the City. (Doc. 48 at 8)

23

Specifically, Plaintiff asserts:

24
25
26
27
28

As to Mr. Black, there is no irregularity with preparing to take two depositions on the
same day of travel, after and in addition to the travel time itself. Thus, these hours are
not “double billed,” and there are no indications to the contrary. ECF Doc. 46-2, at 8.
Plaintiff’s recorded attorney hours for the depositions are also correct. The small 0.2
hour (i.e. 12 minute) discrepancy between the parties on the duration of the deposition
of Mr. Raya is readily explained by the time it took Mr. Black to travel to and from
Mr. Szewczyk’s office from his hotel. See ECF Doc. 46-3 at 23-25. Similarly, the
deposition of the Plaintiff was noticed for 9:30am, and lasted from 9:55am to 4:06pm.
See Rozynski Reply Declaration. Mr. Rozynski arrived early and stayed for a period of
time afterwards to converse with Mr. Tarango. See id. He then included travel time
26

1
2

back to Los Angeles in his figure for the deposition. See id. This explains the
discrepancy between Defendant’s 5.4 recorded hours for the deposition versus
Plaintiff’s 8 recorded hours, as the entire deposition process from start to finish lasted
longer for Plaintiff than Defendant (which is not unusual or unexpected).

3
4

(Doc. 48 at 8, emphasis in original)

5

Notably, it is possible for an attorney to travel and prepare for a deposition on the same day,

6

and in doing so work for fifteen hours. See In re New Boston Coke Corp., 299 B.R. 432, 448 (E.D.

7

Mich. 2003) (“it is certainly possible that an attorney could bill ten-, nineteen- or twenty-hour days”)

8

Because he is an officer of the Court, the Court will not question Mr. Black’s records related to both

9

traveling and preparing for depositions on the same date. In addition, although Mr. Rozynski did not

10

question Plaintiff during his deposition, it was not unreasonable for Mr. Rozynski to prepare for the

11

deposition of his client. Finally, Plaintiff has provided adequate explanations for the differences in the

12

billing records for the duration of depositions compared to the times identified by Mr. Szewczyk.

13

Thus, the Court finds the hours billed by Plaintiff’s counsel related to the depositions were not

14

excessive or unreasonable.
j.

15
16
17
18

Plaintiff’s counsel hired an expert to evaluate Plaintiffs ability to communicate. (Doc. 47 at 9)
The City contends the time expended related to the expert “should be stricken,” including:
DATE
11/13/2016

19
12/9/2016

20
21
22
23
24

Expert’s report

3/1/2017
3/1/2017
3/8/2017
3/28/2017
3/28/2017
3/31/2017
4/5/2017

WORKER
EisenbergMichalhowski
EisenbergMichalhowski
Acampora
Rozynski
EisenbergMichalhowski
Black
Acampora
Acampora
Acampora

TASK
Expert Witness- Judy Shepard Kegl[] Documents
for Discovery- deposition
Judy Kegl Shepard – Schedule 12/17

TIME
2.00

Reviewing Expert Report Documents
Correspondence with Expert
Judy Shepard Kegl- essays
Status of case
Reviewing expert report and sending to Dr. Kegl
Draft expert report letter
Prepare Expert Report documents and videos
Reviewing, scanning and filing expert disclosures

0.10
0.50
1.00

1.00

1.00
0.50
1.20
0.30

25
26

(Doc. 47 at 9; Doc. 47-3 at 13; Doc. 46-2 at 11-14) The City notes that “some of the entries consisted

27

of scanning and filing, which are manifestly clerical work and not legal work,” and “should be

28

stricken.” (Doc. 47 at 9) The City also asserts, “some of the work attributed to the expert may have
27

1

actually been prepared by Plaintiff’s attorneys, which raises significant issues as to the impartiality of

2

the expert and what exactly was done by the expert.” (Id.)

3

On the other hand, as Plaintiff observes, “attorneys are entitled … to communicate with the

4

expert about the expert’s compensation, the scope of the report, and the assumptions to be considered.”

5

(Doc. 48 at 9, citing Fed. R. Civ. P. 26(b)(4)(C)) The Court declines to speculate as to the nature of the

6

communications between the expert and counsel, and will not reduce the time reported for reviewing

7

the expert’s documents or corresponding with the expert. However, the work is clerical—as Plaintiff

8

admits (see id.) — including reviewing, scanning, and filing documents for the expert report is not

9

compensable. See Nadarajah, 569 F.3d at 921 (work that is “clerical in nature … should [be]

10

subsumed in firm overhead rather than billed” and is therefore not recoverable); In re Mohsen, 473

11

B.R. 779, 795 (N.D. Cal. 2012) (explaining organizing documents and filing were “non-compensable

12

clerical tasks”). Therefore, Plaintiff is not entitled to recover fees for the 0.30 hours of clerical work

13

performed by Mr. Acampora.

14
15

k.

Pre-trial preparation

The City objects to the amount of time expended by Plaintiff’s counsel on pre-trial preparation,

16

including drafting the joint pre-trial conference statement, motions in limine, and jury instructions.

17

(Doc. 47 at 9-11) The City observes that counsel spent approximately 24 hours preparing the pre-trial

18

statement, 10 hours preparing a motion in limine, and 38 hours “in preparation and revision to jury

19

instructions.” (Id.) Further, the City notes: “Some of the entries refer to clerical tasks, e.g., creating

20

lists, scanning documents, converting documents, and bate stamping documents which had already

21

been bate stamped when produced. These charges are unnecessary and not ‘legal work.” (Id. at 11)

22

Notably, the amount of time Defendant believes to be necessary to prepare for trial is clearly

23

framed by the thirty-four years of experience that Mr. Szewczyk has in the practice of law. (See Doc.

24

47- 3 at 20, ¶ 26) Mr. Black has been admitted to practice for approximately three years in New York

25

and less than one year in the state of California. Given the fact he has less experience, spending more

26

time on trial preparation—such as the 15 hours Mr. Black spent to research and draft the pre-trial

27

statement— is not unreasonable. Likewise, though senior attorneys reviewed work of junior attorneys,

28

a review of the billing records does not clearly indicate unnecessary work on the pre-trial documents.
28

1

On the other hand, as the City observes, many entries related to pre-trial preparation include

2

exhibits extraction, Bates stamping documents, scanning Plaintiff’s exhibits, and drafting an index—

3

with each task completed by Dina Valmon. (Doc. 46-2 at 16-17) Given the clerical nature of these

4

tasks, as noted above, the Court will deduct the 10.10 hours worked by Ms. Valmon from the lodestar

5

calculation. See Nadarajah, 569 F.3d at 921.

6

l.

7

Mediation

Ms. Jaramilla and Mr. Rozynski both represented Plaintiff at the mediation session in April

8

2017, with one attorney appearing in person in Bakersfield and the other attorney appearing via a video

9

conference. (Doc. 47 at 10; Doc. 47-3 at 20, Szewczyk Decl. ¶25) According to the City, “Given the

10

simplistic nature of the mediation conducted (the bulk consisted of minor tweaks to the accommodation

11

language the parties had already agreed upon), it is clear that only one attorney was necessary to

12

conduct the mediation.” (Id.) Therefore, the City argues “only one attorney’s time should be allowed”

13

for participation in the mediation. (Id.)

14

Significantly, the Ninth Circuit determined “the participation of more than one attorney does not

15

necessarily constitute an unnecessary duplication of effort.” Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9

16

(9th Cir. 1989) (citing Probe v. State Teachers’ Retirement System, 780 F.2d 776, 785 (9th Cir. 1986)).

17

Because mediation offers “best opportunity for an early resolution of the matter,” it is not unreasonable

18

for two attorneys to attend a mediation session. Banas v. Volcano Corp., 47 F. Supp. 3d 957, 971 (N.D.

19

Cal. 2014); King v. Cigna Corp., 2007 U.S. Dist. LEXIS 9464 at *18 (N.D. Cal. Dec. 13, 2007)

20

(finding “it was not unreasonable for [the plaintiff] to enlist the services of two attorneys with different

21

backgrounds and perspectives” to attend a mediation session); Lauderdale v. City of Long Beach, 2010

22

U.S. Dist. LEXIS 146002 at *26-27 (C.D. Cal. Jan. 11, 2010) (holding that “participation of more than

23

one attorney at a mediation does not automatically constitute an unnecessary duplication of effort,” and

24

awarding time for the two attorneys present where “the mediation sat at the very crossroads of the

25

resolution of this case”).

26

In this case, as in King, the two attorneys have different backgrounds and perspectives, with

27

Ms. Jaramilla having more than twenty years of experience in the practice of law and Mr. Rozynski

28

having five years of experience. (See Doc. 46-5 at 2, ¶2; Doc. 46-1 at 3, ¶6) Further, Mr. Jaramilla
29

1

has extensive experience with employment law, while Mr. Rozynski has experience with “disability

2

discrimination cases.” (Doc. 46-5 at 2, ¶ 2; Doc. 46-1 at 2, ¶5) Thus, it was not unreasonable for both

3

Ms. Jaramilla and Mr. Rozynski to participate in the session. See King, 2007 U.S. Dist. LEXIS 9464

4

at *18; see also Banas, 47 F. Supp. 3d at 971 (finding it was not unreasonable for “two senior

5

attorneys” to attend mediation); Kim, 871 F.2d at 1435 n.9.
m.

6
7

Court settlement conference

The City asserts the 8.0 hours billed by Mr. Rozynski for the settlement conference with the

8

Court were excessive, because “the total time only took 4.5 hours.” (Doc. 47 at 11, citing Doc. 47-3 at

9

20, Szewczyk Decl. ¶25) On the other hand, Plaintiff asserts the “recorded attorney time for the

10

settlement conference is correct,” and that the “conference lasted from 11:00am until 4:30pm.” (Doc.

11

48 at 9, Doc. 48-1 at 2, Rozynski Supp. Decl. ¶5) Mr. Roznyski reports that he “arrived at 10:00am to

12

prepare with Plaintiff and stayed for 45 minutes afterward to converse further with Plaintiff about the

13

case; and … traveled 20 minutes each way.” (Doc. 48-1 at 2, ¶5)

14

Notably, the Court records indicate the settlement conference with Judge Seng lasted for 5.0

15

hours—not 4.5 hours as reported by the City or the 5.5 hours reported by Plaintiff. Accordingly, the

16

time awarded to Mr. Rozynski related to the settlement conference will be reduced to 7.42 hours, which

17

includes 5.0 hours for the conference, 1.0 hours to prepare with Plaintiff, 0.75 hours to discuss the

18

conference with Plaintiff, and 0.67 hours for travel.
3.

19
20
21

Lodestar Calculation

With the hourly rates and time adjustments set forth above, the lodestar for the time expended
in this action is $94,621.25:

22

LAW FIRM

23

Eisenberg & Baum/
Law Center for Deaf
and Hard of Hearing

24
25
26
27
28

LEGAL
PROFESSIONAL
Andrew Rozynski
Phillip Black
Leah Weiderhorn
Brittany Shrader
Sheryl EisenbergMichalowski
Barbara Friedman
Greg Acampora
Dina Valmon

ADJUSTED
HOURS
115.02
103.94
19.82
1.90
10.00

LODESTAR

$250
$200
$300
$275
$115

$28,755.00
$20,788.00
$5,946.00
$522.50
$1,150.00

0.75
10.10
0

30

RATE

$155
$115
n/a

$116.25
$1,161.50
0

1
2
3
4
5

Toni Jaramilla, APLC Toni Jaramilla
May Mallari
Francis Agaoili
TOTAL

4.

55.85
34.96
2.44

$400
$375
$300

$22,340.00
$13,110.00
$732.00
$94,621.25

Adjustment of the lodestar

There is a strong presumption that the lodestar is a reasonable fee. Gonzalez, 729 F.3d at 1202;

6

Camacho, 523 F.3d at 978. However, the Court may adjust a lodestar upward or downward using a

7

“multiplier” in “rare and exceptional cases, supported by both specific evidence on the record and

8

detailed findings … that the lodestar amount is unreasonably low or unreasonably high.” Van Gerwen

9

v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal quotation marks omitted). Here,

10

Plaintiff contends the Court should award the full amount requested of $194,218.50 in light of the

11

results obtained by counsel in this action (Doc. 46 at 8; Doc. 48 at 2, 11), which would result in a

12

multiplier of approximately 2.05 from the lodestar amount of $94,621.25.

13
14
15
16
17
18

The Ninth Circuit has identified the following factors to determine the reasonableness of a fee
request, and whether a departure from the lodestar is warranted with a multiplier:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved,
(3) the skill requisite to perform the legal service properly, (4) the preclusion of other
employment by the attorney due to acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained, (9) the experience,
reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the
nature and length of the professional relationship with the client, and (12) awards in
similar cases.

19
20

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). However, the Court has since

21

questioned whether the fixed or continent nature of a fee and the “desirability” of a case are relevant

22

factors. Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087, 1095, n.5 (9th Cir.

23

2011) (citing Davis v. City of San Francisco, 976 F.2d 1536, 1546 n.4 (9th Cir. 1992)). In addition,

24

many of these factors have been “subsumed in the lodestar determination,” and “may not act as

25

independent bases for adjustments of the lodestar.”13 Cunningham v. County of Los Angeles, 879 F.2d

26

481, 487 (9th Cir. 1988).

27
28

13
The factors subsumed in the court’s lodestar analysis include: “(1) the novelty of the issues, (2) the skill and
experience of counsel, (3) the quality of representation, (4) the results obtained, and (5) the contingent nature of the fee
agreement.” Eiden v. Thrifty Payless, Inc., 407 F. Supp. 2d 1165, 1172 (E.D. Cal. 2005)

31

1

Significantly, although Plaintiff contends the results obtained in this action favor an award of

2

the total amount of fees requested, this factor is one “subsumed in the lodestar analysis.” Eiden v.

3

Thrifty Payless, Inc., 407 F. Supp. 2d 1165, 1172 (E.D. Cal. 2005) (citing Morales v. City of San

4

Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996)). The Ninth Circuit explained:

5
6
7

[I]n ordinary cases, a plaintiff’s “degree of success” or the “results obtained” should
be adequately accounted for in the lodestar. Only in rare or exceptional cases will an
attorney’s reasonable expenditure of time on a case not be commensurate with the
fees to which he is entitled. Adjustments to the lodestar based on “results obtained”
must be supported by evidence in the record demonstrating why such a deviation
from the lodestar is appropriate.

8
9

Cunningham, 879 F.2d at 488 (9th Cir. 1988). Thus, the Ninth Circuit explained that “the favored

10

procedure is for the district court to consider the extent of the plaintiff’s success in making its initial

11

determination of hours reasonably expended at a reasonable rate, and not in subsequent adjustments to

12

the lodestar figure.” Gates, 987 F.2d at 1404.

13

The record does not support a conclusion that the results obtained were rare or exceptional,

14

warranting the application of a multiplier. While Plaintiff obtained the relief requested, he did not face

15

significant challenges in the litigation, such that an upward departure of the lodestar is warranted. See

16

Chalmers v. Los Angeles, 796 F.2d 1205, 1212-13 (9th Cir. 1986). In addition, there were not time

17

limitations imposed in the litigation, the length of the professional relationship between counsel and

18

Plaintiff was not extensive, and the action does not appear “undesirable.” Further, there is no evidence

19

that counsel was precluded from other employment while working on this litigation, given the limited

20

number of hours required from each attorney over the course of the litigation. Likewise, there is no

21

evidence that the fee award is not commensurate with other cases in this forum. Because the Kerr

22

factors weigh against the application of a multiplier in this action, the lodestar amount of $94,621.25

23

will be awarded to Plaintiff.

24

C.

Award of Costs

25

Plaintiff seeks an award of costs in the amount of $13,409.75 under the ADA, Rehabilitation

26

Act, FEHA, and Fed. R. Civ. P 54(d)(1). (Doc. 46 at 9-10) Federal law authorizes an award of costs

27

under both the ADA and Rehabilitation Act to prevailing parties in an action. 42 U.S.C.A. § 12205; 29

28

U.S.C.S. 794a(b). Likewise, California law provides that a prevailing party may recover costs under
32

1

FEHA. See Cal Gov’t Code § 12965.
Defendant does not dispute that Plaintiff is entitled to an award of costs as a prevailing party,

2
3

but objects to an award of costs related to counsel’s pro hac vice applications and travel. (Doc. 47 at 7,

4

14-15)

5
6

1.

Pro hac vice applications

The City argues Plaintiff is not entitled to receive costs for obtaining certificates in good

7

standing and filing of pro hac vice motions for Mr. Roznyski and Eric Baum. (Doc. 47 at 7; see also

8

Doc. 46-3 at 1) According to the City, “These charges are made even more suspect in that Mr. Baum

9

never made an appearance in the action nor did any work on the case based upon the entries submitted

10

to Court. “ (Id.) Therefore, the City contends these costs should not be awarded.

11

In reply, Plaintiff replies that “[t]he pro hac vice motions, of course, were necessary for

12

Plaintiff’s out-of-state attorneys to appear on the matter, and costs for them should be allowed.” (Doc.

13

47 at 7, citing Moore, 2017 U.S. Dist. LEXIS 40722 at *17; Archer v. Gipson, 2015 U.S. Dist. LEXIS

14

172270 at *46 (E.D. Cal. Dec. 28, 2015). In addition, Plaintiff contends Mr. Baum “did spend nearly

15

three hours consulting on this case at various points (hours which Plaintiff does not claim in this

16

application).” (Id., citing Doc. 48-2, Baum Decl.)

17

Significantly, however, Rule 54 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920

18

do not specifically authorize pro hac vice fees as taxable costs. This Court has determined “pro hac

19

vice fees are not recoverable as costs.” Kreidler v. Mainstay Bus. Solutions, 2012 U.S. Dist. LEXIS

20

93905 at *3 (E.D. Cal. July 6, 2012); Duhn Oil Tool, Inc. v. Cameron Int’l Corp., 2012 U.S. Dist.

21

LEXIS 134199 at *10 (E.D. Cal. Sept. 19, 2012) (declining to award pro hac vice fees as costs).

22

Indeed, neither case cited by Plaintiff from this Court awards costs for pro hac vice applications. In

23

Moore, the Court discussed the propriety of postage, deposition costs, courier fees, and electronic

24

research begin awarded as litigation expenses. Moore, 2017 U.S. Dist. LEXIS 40722 at *17-21.

25

Likewise, in Archer, the Court considered a request for expenses including sending courtesy copies and

26

“various administrative costs…including witness fees and mileage for appearances at trial, office

27

supplies such as trial binders, process service fees for subpoenas and witness fees, [and] costs related to

28

deposition and city council meeting transcripts.” Id., 2015 U.S. Dist. LEXIS 172270 at *46-47.
33

1

Fees related to pro hac vice applications are akin to fees for admittance to a state or federal bar,

2

which an attorney would not expect either a client or losing party to pay. As the Court previously

3

explained, pro hac vice applications “are an expense that an attorney pays for the privilege of

4

practicing law in this court, and [a] defendant should not be responsible for paying these fees simply

5

because [a] plaintiff chose to be represented by counsel who are not admitted to practice in this

6

district.” Kreidler, 2012 U.S. Dist. LEXIS 93905 at *3. Accordingly, the Court will not award the

7

$436.00 related to obtaining certificates of good standing and the applications to proceed pro hac vice

8

for Mr. Rozynski and Mr. Baum.

9

2.

10

Travel costs

The City argues Plaintiff “should not be allowed to recover the cost for his attorney’s travel

11

when [he] could have hired local counsel.” (Doc. 47 at 14, emphasis omitted) Relying upon state law,

12

the City contends: “Where a plaintiff fails to make a sufficient demonstration of impracticality of not

13

being able to obtain a local attorney, and thus reduce costs, recovery for travel time may be denied.”

14

(Id., emphasis omitted) (citing Horsford v. Board of Trustees of Cal. State Univ., 132 Cal.App.4th 359,

15

398 (2005); Nichols v. City of Taft, 155 Cal. App. 4th 1233, 1244 (2007))

16

However, this Court has specifically rejected such an argument, finding that under federal law,

17

non-local counsel are entitled to an award of travel costs, even where the prevailing party has not

18

demonstrated the unavailability of local counsel. For example, in Moore v. Millenium Acquisitions,

19

LLC, 2017 WL 1079753 (E.D. Cal. Mar. 21, 2017), the Court rejected the defendants’ argument that

20

the plaintiff was “not entitled to bill for travel time” because “district courts may properly allow

21

reasonable travel expenses.” Id. (citing Lemus v. Burnham Painting & Drywall Corp., 426 Fed. Appx.

22

543, 546 (9th Cir. 2011); Nadarajah v. Holder, 569 F.3d 906, 924 (9th Cir. 2009)); see also Davis v.

23

Sundance Apts., 2008 WL 3166479 (E.D. Cal. Aug. 5, 2008) (holding a plaintiff is not required to

24

make a showing that local counsel were unavailable to receive travel time). Accordingly, the Court

25

finds Plaintiff is entitled to an award of travel costs under federal law.

26
27
28

3.

Other costs

Plaintiff has provided evidence of other costs incurred in this action related to filing fees,
mediation, photocopies, and postage. (Doc. 46-4 at 1-2; Doc. 46-5, Jaramilla Decl. ¶ 5) These
34

1

litigation expenses may be awarded as costs. See Alvarado v. Nederend, 2011 WL 1883188 at *10

2

(E.D. Cal. Jan. May 17, 2011) (explaining “filing fees, mediator fees . . . , ground transportation, copy

3

charges, computer research, and database expert fees” are typically identified as litigation costs);

4

Moore, 2017 WL 1079753 at *8 (holding a plaintiff “may recover expenses for postage, courier

5

services, and online research under the ADA”). Accordingly, the Court finds Plaintiff is entitled to an

6

award of the remaining costs sought in this action.

7

IV.

8
9

Conclusion and Order
Based upon the foregoing, the Court ORDERS that Plaintiff’s motion for fees in costs (Doc.

46) is GRANTED IN PART:

10

1.

Plaintiff’s motion for fees is GRANTED in the modified amount of $94,621.25; and

11

2.

Plaintiff’s motion for costs is GRANTED in the modified amount of $12,973.75.

12
13
14
15

IT IS SO ORDERED.
Dated:

November 20, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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18
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25
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