Loskot v. Annie's Panda Garden, et al

Filing 39

ORDER AWARDING FEES AND COSTS re 31 MOTION for Attorney Fees signed by Judge John A. Mendez on 5/11/15. the Court awards Plaintiff reasonable attorney's fees and costs in the following amounts: Fees: $13,302 Costs: $1,930 Total: $15,232(Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARSHALL LOSKOT, 12 15 16 17 2:13-CV-00213-JAM-JFM Plaintiff, 13 14 No. v. ORDER AWARDING FEES AND COSTS ANNIE’S PANDA GARDEN; SHIH KUN WANG and HONG YING WANG, as Co-Trustees under that certain DECLARATION OF TRUST executed September 21, 1993; and SU NI ZHENG, an individual dba ANNIE’S PANDA GARDEN, 18 Defendants. 19 20 Plaintiff Marshall Loskot (“Plaintiff”) sued Defendants’ 21 restaurant for architectural barriers allegedly violating the 22 Americans with Disabilities Act (“ADA”) and California law. 23 parties settled pursuant to a Federal Rule of Civil Procedure 68 24 offer. 25 /// The Plaintiff now moves for fees and costs. 1 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for May 6, 2015. 1 1 I. 2 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Plaintiff visited Defendants’ restaurant on multiple 3 occasions in 2012. Compl.(Doc. #2) ¶ 2. After sending a letter 4 advising of architectural barriers he encountered as a person who 5 uses a wheelchair and receiving no response, Plaintiff brought 6 suit seeking injunctive relief and statutory damages. 7 ¶ 20. 8 and settled the claims as to injunctive relief. 9 Decl. (dated January 15, 2015) Exh. A. Compl. The parties filed no motions, but engaged in negotiations See Frankovich Following the pretrial 10 conference, Defendants also extended an offer of judgment as to 11 damages under Federal Rule of Civil Procedure 68 (Doc. #23), 12 which Plaintiff accepted (Docs. ##24, 26). 13 for an award of fees and costs consistent with that Rule 68 14 agreement (Doc. #31). Plaintiff now moves Defendants oppose the motion (Doc. #35). 15 16 17 II. OPINION Defendants oppose Plaintiff’s fee application on two 18 grounds: first, that the parties entered into a prior settlement 19 inclusive of attorney’s fees and costs, and second, that attorney 20 Thomas E. Frankovich’s hourly rate is too high. 21 A. Prior Settlement of Attorney’s Fees 22 The Court interprets a settlement agreement “according to 23 the objective intent of the parties.” Gallagher v. San Diego 24 Unified Port Dist., 2009 WL 2781553, at *11 (S.D. Cal. Aug. 31, 25 2009) (citing Botefur v. City of Eagle Point, Or., 7 F.3d 152 26 (9th Cir. 1993)). 27 intent that the issue of attorney’s fees be resolved by this 28 Court pursuant to Plaintiff’s fee application. The parties here have evidenced an objective 2 Defendants’ 1 assertion that the parties entered into a prior agreement is 2 unsupported. 3 legal assistant stating, “This is ti [sic] verify that the case 4 has settled for $8750, we will send a General Release. [sic]” 5 See Opp. Exh. A. 6 was memorialized in October 2014, see Opp. at 2, but the document 7 they provide does not reference this $8750 and instead states 8 that “[a]ttorneys’ fees, costs and litigation expenses remain 9 before the Court.” They provide a May 2014 email from Mr. Frankovich’s Defendants’ claim that this settlement amount Mot. Exh. at 3. Furthermore, the parties 10 later entered into the Rule 68 agreement that provides, “the 11 parties have agreed to resolve the issues of attorney’s fees cost 12 and litigation expenses by a fee application.” 13 The Court therefore concludes that the parties have evidenced an 14 objective intent to resolve the issue of fees by this fee 15 application. 16 B. 17 The parties apparently agree that the loadstar method is Doc. #26 at 1. Hourly Rates 18 appropriate for calculating fees in this case. 19 of Fairfield, 2014 WL 1286001, at *3 (E.D. Cal. Mar. 31, 2014) 20 (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 21 (9th Cir. 1975)). 22 hourly rate be set at $400 per hour. 23 argue that the prevailing rate in the Sacramento community for 24 ADA cases is $250 per hour. 25 See Hall v. City Plaintiff has requested that Mr. Frankovich’s See Mot. at 10. Defendants Opp. at 2. “A court awarding attorney fees must look to the prevailing 26 market rates in the relevant community.” 27 341 F.3d 858, 860 (9th Cir. 2003). 28 ADA barriers case in Sacramento for an experienced attorney such 3 Bell v. Clackamas Cty., The prevailing rate for an 1 as Mr. Frankovich is $300. 2 2014 WL 1334006, at *6 (E.D. Cal. Apr. 3, 2014); Jones v. Cty. Of 3 Sacramento, 2011 WL 3584332, at *6 (E.D. Cal. Aug. 12, 2011). 4 The Court has considered Mr. Frankovich’s experience and See Johnson v. Allied Trailer Supply, 5 reputation, but finds $400 per hour to be excessive. A rate of 6 $400 is generally reserved for “complicated civil rights cases 7 litigated by attorneys with thirty or more years of experience.” 8 See Johnson, 2014 WL 1334006, at *5 (collecting cases); Jones, 9 2011 WL 3584332, at *6 (finding that $350 was reasonable for an 10 attorney with more than twenty years of experience in a police 11 brutality case with multiple claims and defendants that proceeded 12 to trial). 13 Accord Yates v. Vishal Corp., 2014 WL 572528, at *6 (N.D. Cal. 14 Feb. 4, 2014) (characterizing Mr. Frankovich’s ADA practice to 15 include “simple” cases which he has “reduced . . . to a kind of 16 routine”) (quotation marks omitted); see Joint Pretrial Statement 17 at 3:6 (noting that this case arose from “nearly identical ADA 18 deficiencies” as a previous case litigated by a different 19 plaintiff). 20 because Defendants have not provided a comparable case or other 21 evidence that $250 per hour is an appropriate rate. 22 cite Loskot v. D&K Spirits, LLC, 2011 WL 567364 (E.D. Cal. 15, 23 2011), but that case held that $250 per hour was reasonable 24 because the matter had resolved by default judgment. 25 *5. 26 $300 per hour. 27 /// 28 /// In contrast, this ADA case was not complicated. The Court also declines to go as low as $250, Defendants See id. at The Court therefore calculates Mr. Frankovich’s loadstar at 4 1 C. 2 Defendants do not challenge any other aspects of the fee Other Aspects of the Fee Application 3 application. The Court has reviewed the breakdown of the hours 4 billed, the rates billed for Mr. Frankovich’s paraprofessionals, 5 the enumerated costs, and the other aspects of the fee 6 application, and finds them to be reasonable. 7 8 9 10 III. ORDER For the reasons set forth above, the Court awards Plaintiff reasonable attorney’s fees and costs in the following amounts: 11 Fees: $13,302 12 Costs: $ 1,930 13 Total: $15,232 14 IT IS SO ORDERED. 15 Dated: May 11, 2015 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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