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