McCarty, et al. v. Humphrey, et al.

Filing 118

ORDER signed by District Judge Kimberly J. Mueller on 9/14/2016 GRANTING IN PART Plaintiffs' 111 Motion for Attorney Fees. Defendants are directed to pay plaintiffs $137,875.10 in attorney's fees and $8,590.94 in costs. (Jackson, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES MCCARTY, et al.,

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Plaintiffs,

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No. 2:13-cv-00431-KJM-AC

v.

ORDER

RUSSELL HUMPHREY, et al.,

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Defendants.

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This matter is before the court on a motion for attorney’s fees and costs brought by

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plaintiffs James and Robert McCarty under the federal Americans with Disabilities Act of 1990

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(“ADA”), 42 U.S.C. § 12101 et seq., the California Unruh Civil Rights Act (“Unruh Act”), Cal.

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Civ. Code § 51 et seq., and the California Disabled Persons Act, Cal. Civ. Code § 54 et seq.

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Defendants oppose the motion. The court submitted the matter as provided by Local Rule 230(g).

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As explained below, the court GRANTS IN PART plaintiffs’ motion.

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I.

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BACKGROUND
Plaintiffs James and Robert McCarty are over eighty years old and are physically

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disabled. See Order at 2, Sept. 15, 2015, ECF No. 93 (“Second Summ. J. Order”). They filed this

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action on March 4, 2013, after encountering accessibility barriers at the Lakeshore Plaza in Lodi,

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California (the Property). See generally Compl., ECF No. 3. Plaintiffs brought claims for
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violations of the ADA, the Unruh Act, and the California Disabled Persons Act, and a claim for

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common law negligence. See id. They sought injunctive relief and statutory damages. Id. at 30–

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32. Defendants answered. ECF Nos. 15–17. Plaintiffs subsequently filed a first amended

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complaint, ECF No. 29, and defendants filed an amended answer, ECF No. 46. Defendants

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alleged plaintiffs had no subjective intent to use the facilities at issue. Id. ¶ 124. They alleged the

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sole purpose of plaintiffs’ visit was to seek access to the facilities for purposes of bringing this

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action and seeking revenge against defendant Russell Humphrey, who had previously filed a

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separate lawsuit against them. See id. Mr. Humphrey is an attorney whose office is located at

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Lakeshore Plaza. See Second Summ. J. Order at 2. The remaining defendants either own or lease

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an office at the Plaza. See id.
On September 16, 2014, almost a year after the court’s deadline for seeking

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amendment of the pleadings had passed, plaintiffs moved for leave to file a second amended

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complaint. ECF No. 52. On October 10, 2014, before the court had ruled on plaintiffs’ motion,

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plaintiffs moved for summary judgment, relying heavily on new barriers identified in their

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proposed second amended complaint. ECF No. 53. Defendants opposed the motion to amend,

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ECF No. 54, and requested additional time to respond to the motion for summary judgment, ECF

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No. 57. The court initially granted defendants’ request for a continuance, ECF No. 58, but then

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denied the request upon further consideration, ECF No. 61. On October 31, 2014, the court

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denied plaintiffs’ motion for leave to file a second amended complaint. ECF No. 63. Defendants

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opposed the then-pending motion for summary judgment, ECF No. 64, and plaintiffs replied,

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ECF No. 65. On January 29, 2015, the court denied plaintiffs’ motion for summary judgment

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without prejudice to refiling a motion for summary judgment limited to the barriers identified in

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the operative first amended complaint. ECF No. 69.

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Plaintiffs subsequently filed a second motion for summary judgment. ECF No. 70.

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Defendants opposed the motion, ECF Nos. 77 & 80, and requested a continuance under Federal

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Rule of Civil Procedure 56(d) to conduct discovery with respect to DeAnne Caron, the person

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who performed plaintiffs’ initial ADA inspection of the Property, ECF No. 85. On September 15,

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2015, the court granted in part and denied in part plaintiffs’ second motion for summary
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judgment. Second Summ. J. Order. Specifically, the court granted the motion and awarded

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plaintiffs $8,000 each in statutory damages for their Unruh Act claim based on the insufficient

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number of handicap-accessible parking spaces at the time of plaintiffs’ two visits; granted the

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motion as to the ADA claims based on non-compliant stairway handrails and surface slope

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barriers; denied the motion as moot as to the ADA claims based on the lack of a van-accessible

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parking space and the tow away sign; and denied the motion as to the ADA claims based on the

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cross-slope of the walkway, the directional signage for the path of travel, the directional sign at

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the stairway, and the men’s restrooms. Id. at 6–10, 13. The court found defendants jointly and

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severally liable for the ADA violations. Id. at 10–11. The court also denied defendants’ request

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for a continuance under Rule 56(d). Id. at 11–13. To give effect to its September 15, 2015 order,

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the court later ordered defendants to take actions to ensure compliance as to the stairway

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handrails and the surface slopes of certain parking spaces based on a proposed order (ECF

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No. 94) submitted by plaintiffs. Order, Oct. 16, 2015, ECF No. 95.

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Thereafter, the parties engaged in settlement discussions regarding any remaining

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claims. On November 30, 2015, the parties filed a stipulation and notice of intent to settle, ECF

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No. 97, and on February 16, 2016, nearly three years after this action was filed, the parties filed a

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joint request for dismissal with prejudice based on a settlement agreement, ECF No. 106.

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Defendants agreed to install side and rear grab bars in the men’s restrooms, and plaintiffs agreed

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to dismiss all remaining claims. Id. at 3–4. The case was dismissed on March 25, 2016, ECF

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No. 107, and judgment was entered against defendants on April 14, 2016, ECF No. 109, leaving

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open the question of attorney’s fees and costs.

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On May 12, 2016, plaintiffs moved for attorney’s fees and costs. ECF No. 111

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(“Mot.”). Defendants opposed the motion, ECF No. 115 (“Opp’n”), and plaintiffs replied, ECF

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No. 116 (“Reply”).

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II.

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LEGAL STANDARD
The ADA, Unruh Act, and California Disabled Persons Act each permit recovery

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by a “prevailing” plaintiff. 42 U.S.C. § 12205; Cal. Civ. Code §§ 52(a), 55. Such fee-shifting

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statutes “enable private parties to obtain legal help in seeking redress for injuries resulting from
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actual or threatened violation of specific . . . laws,” Pennsylvania v. Del. Valley Citizens’ Council

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for Clean Air, 478 U.S. 546, 565 (1986); they are not intended “to punish or reward attorneys.”

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Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000). A plaintiff who

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enters into a legally enforceable settlement agreement is considered a prevailing party. Barrios v.

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Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002). And because plaintiff here has

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obtained “substantial relief” on “related” claims, the court may award full fees under either claim

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and need not distinguish between or among those awarded under each. See El–Hakem v. BJY

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Inc., 415 F.3d 1068, 1075–76 (9th Cir. 2005); see also Schwarz v. Sec’y of Health & Human

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Servs., 73 F.3d 895, 901–02 (9th Cir. 1995) (discussing Hensley v. Eckerhart, 461 U.S. 424, 440

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(1983)).

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To calculate recoverable fees, both federal and state courts look to the lodestar,

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Hensley, 461 U.S. at 433; Ketchum v. Moses, 24 Cal. 4th 1122, 1131–32 (2001), which is

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“strong[ly] presum[ed]” to represent a reasonable fee, Del. Valley Citizens’ Council for Clean

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Air, 478 U.S. at 565; Hiken v. Dep’t of Def., No. 13-17073, ___ F.3d ___, 2016 WL 4608147,

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at *5 (9th Cir. Sept. 6, 2016). The court arrives at this figure by multiplying the number of hours

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reasonably expended by a reasonable hourly rate. Hensley, 461 U.S. at 433; Ketchum, 24 Cal. 4th

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at 1131–32. In “rare and exceptional cases,” the lodestar figure may be adjusted by using a

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multiplier. Del. Valley Citizens Council for Clean Air, 478 U.S. at 565 (internal quotation marks

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omitted).

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III.

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DISCUSSION
A.

Attorney’s Fees
Plaintiffs seek attorney’s fees based on the lodestar without any adjustment.

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Defendants do not challenge plaintiffs’ prevailing party status or entitlement to attorney’s fees.

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Plaintiffs won substantial relief both through the court’s order granting in part their second

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motion for summary judgment, see ECF Nos. 93 & 95, and the settlement agreement regarding

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plaintiffs’ claim based on the men’s restrooms, ECF No. 106-1. Neither do defendants challenge

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plaintiffs’ requested hourly rates, specific billing entries, or the requested costs. Instead,

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defendants generally challenge the overall fees requested as being “unreasonable and
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extraordinarily excessive,” Opp’n at 1, and contend the court should award no more than $20,000,

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id. at 11. Specifically, defendants argue the requested amount is unreasonable on its face because

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the case was a typical, straightforward ADA case; there was only one deposition; plaintiffs’

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counsel has a history of demanding unreasonable attorney’s fees; plaintiffs never sought to settle

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before seeking summary judgment; defendants’ attorney’s fees are no more than $25,000,

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approximately one-sixth of the amount requested by plaintiffs; and plaintiffs’ motion for leave to

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amend the complaint and first motion for summary judgment were frivolous. See generally id. at

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4–14. Defendants also say there was only one court appearance, id., but as plaintiffs note, there

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were in fact two court appearances, with defendants failing to appear at the Status (Pretrial

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Scheduling) Conference held on September 19, 2013. See Reply at 9; see also Minutes for Status

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(Pretrial Sched.) Conf., Sept. 19, 2013, ECF No. 24; Minutes for Mot. Hr’g, May 22, 2015, ECF

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No. 88. Defendants again insist this action was a “revenge suit” intended to run up exorbitant

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attorney’s fees. Id. at 2–3.

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The court will first review the requested hours and hourly rates, and then will
consider whether any adjustment to the lodestar is warranted.

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1.

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“The prevailing party has the burden of submitting billing records to establish that

Reasonable Hours

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the number of hours it has requested [is] reasonable.” Gonzalez v. City of Maywood, 729 F.3d

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1196, 1202 (9th Cir. 2013). The court may reduce the hours “where documentation of the hours

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is inadequate; if the case was overstaffed and hours are duplicated; [or] if the hours expended are

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deemed excessive or otherwise unnecessary.” Chalmers v. City of Los Angeles, 796 F.2d 1205,

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1210 (9th Cir. 1986), amended on denial of reh’g by 808 F.2d 1373 (9th Cir. 1987). An

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attorney’s sworn testimony “is evidence of considerable weight on the issue of the time required”

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to perform a task. Blackwell v. Foley, 724 F. Supp. 2d 1068, 1081 (N.D. Cal. 2010) (citation

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omitted); see also Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“[In

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contingency fee cases], [b]y and large, the court should defer to the winning lawyer’s professional

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judgment as to how much time [he or she] was required to spend on the case . . . .”). “[T]he party

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opposing the fee application has a burden of rebuttal that requires submission of evidence to the
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district court challenging the accuracy and reasonableness of the hours charged or the facts

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asserted by the prevailing party in its submitted affidavits.” Hiken, 2016 WL 4608147, at *7

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(quoting Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992)).

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Plaintiffs here request a total of 497.56 hours, based on the following general
breakdown, rounded to the nearest hour:

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Investigation: 11 hours

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Case Opening and Related Tasks: 59 hours

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Case Management: 8 hours

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Motion to Amend the Complaint: 7 hours

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Discovery: 87 hours

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Law and Motion: 253 hours

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Settlement Attempts: 28 hours

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Motion for Attorney’s Fees: 43 hours

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Mot. at 14; see Corfee Decl. Ex B (detailed billing statement), ECF No. 111-3. Plaintiffs also

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seek 10.2 hours spent litigating this motion. Reply at 9; Corfee Decl. II ¶ 3, ECF No. 116-1.

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Plaintiffs discounted certain hours as excessive or duplicative and discounted hours incurred in

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connection with their unsuccessful motion for leave to file a second amended complaint (ECF

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No. 52), including the portions of the first motion for summary judgment that addressed the

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proposed amendments (ECF No. 53). Corfee Decl. ¶¶ 15–16; Reply at 4.

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Plaintiffs’ motion for leave to amend, however, was frivolous and entirely ignored

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Federal Rule of Civil Procedure 16, so the court finds plaintiffs’ counsel should not be

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compensated for any fees incurred in connection with the motion; no such hours were

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“reasonably” incurred. See Order at 3–4, Oct. 31, 2014, ECF No. 63. Accordingly, the court

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strikes the requested seven hours for the motion to amend. See Mot. at 14. It is not clear which

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specific entries plaintiffs’ counsel have already discounted in connection with the motion, but it

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appears they still are requesting .9 hours for Catherine Corfee and 6.1 hours for Arash

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Khosrowshahi, so the court will reduce their respective hours accordingly. See id.; Reply at 4;

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Corfee Decl. Ex. B (Sept. 9, 2014 through Oct. 21, 2014); cf. Fox v. Vice, 563 U.S. 826, 838
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(2011) (in determining the fee award, courts need not “achieve auditing perfection” or “become

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green-eyeshade accountants”).

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The court finds the remaining hours requested to be reasonable. Although the

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issues involved were relatively straight-forward, litigation of the case lasted over three years and

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required substantial motion practice. It is not facially unreasonable to spend approximately 500

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hours over the course of three years litigating a case of this type. Defendants themselves

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increased the number of hours necessarily expended by missing filing deadlines, requesting

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continuances, pursuing their “revenge theory” defense, and filing a late, frivolous motion seeking

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the consideration of new evidence. See, e.g., ECF Nos. 26, 38, 54, 85, 87. In choosing their

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litigation strategy, defendants assumed the risk they would have to reimburse additional expenses.

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And while plaintiffs have submitted evidence of their specific settlement attempts during the

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litigation, see Corfee Decl. ¶¶ 17–18 & Ex. C, defendants have provided no evidence supporting

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their claim that plaintiffs never sought to settle, see Opp’n at 10–11. Indeed, defendants provide

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no evidence that they themselves ever made an effort to settle before the court granted in part

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plaintiffs’ second motion for summary judgment. See id.

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Defendants also submit a declaration that a former client of plaintiffs’ counsel,

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Ms. Corfee submitted in a prior case in connection with Ms. Corfee’s motion to withdraw as

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counsel in that case. Weiner Decl., ECF No. 115-3; see Opp’n at 8. Defendants claim this

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declaration is evidence that Ms. Corfee “routinely misrepresents facts and has a history of

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overbilling clients.” Opp’n at 8. The court disagrees and finds the declaration irrelevant to the

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pending motion for attorney’s fees in this case. Defendants’ claims about plaintiffs’ counsel’s

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intent are entirely speculative and unsupported by the record in this case. At the same time, the

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court denies plaintiffs’ request to sanction defendants for filing the declaration, see Reply at 1–2,

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but will award plaintiffs the reasonable hours spent preparing their reply brief, including the time

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spent responding to the declaration, see Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th

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Cir. 2008) (“In statutory fee cases, federal courts, including our own, have uniformly held that

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time spent in establishing the entitlement to and amount of the fee is compensable.” (quoting In re

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Nucorp Energy, Inc., 764 F.2d 655, 659–60 (9th Cir. 1985)). The court finds the seven hours
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requested for Ms. Corfee and the 3.2 hours requested for Zachary Best for litigating the fees

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motion is reasonable. Corfee Decl. II ¶ 3.

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The court concludes attorney Corfee reasonably expended 357.86 hours (the

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requested 351.76 hours + 7 hours for the fees motion – the court’s .9-hour reduction); attorney

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Best reasonably expended 78.2 hours (the requested 75 hours + 3.2 hours for the fees motion);

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junior associate Khosrowshahi reasonably expended 44.26 hours (the requested 50.36 hours – the

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court’s 6.1-hour reduction); paralegal Tenieshsa Kennedy reasonably expended 5.49 hours; and

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paralegal Rebecca Dingler reasonably expended 12.26 hours. See Corfee Decl. Ex. A. The court

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next determines the reasonable hourly rates.

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2.

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In determining a reasonable hourly rate for successful civil rights attorneys, courts

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consider a number of factors, “including the novelty and difficulty of the issues, the skill required

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to try the case, whether or not the fee is contingent, the experience held by counsel and fee

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awards in similar cases.” Moreno, 534 F.3d at 1114; see also Hiken, 2016 WL 4608147, at *5

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(listing similar factors). “While disability access cases are a subset of civil rights practice, the

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reasonable hourly rate merited in routine disability access cases typically falls below the hourly

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rate charged in more complicated civil rights cases.” Johnson v. Patel, No. 14-2078, 2016 WL

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727111, at *3 (E.D. Cal. Feb. 23, 2016).

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Reasonable Hourly Rates

“The reasonable rate should generally be guided by ‘the rate prevailing in the

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community for similar work performed by attorneys of comparable skill, experience, and

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reputation.’” Hiken, 2016 WL 4608147, at *5 (quoting Chalmers, 796 F.2d at 1210–11). The

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relevant community here is the Sacramento Division of the Eastern District of California. The fee

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applicant bears the burden of showing that the requested rate is “in line with those prevailing in

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the community.” Id. at *6 (quoting Camacho, 523 F.3d at 980). “In general, ‘[a]ffidavits of the

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plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate

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determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are

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satisfactory evidence of the prevailing market rate.’” Id. (quoting United Steelworkers of Am. v.

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Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)).
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Plaintiffs seek hourly rates of $300 for attorney Corfee, $285 for attorney Best,

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$150 for junior associate Khosrowshahi, $120 for paralegal Kennedy, and $100 for paralegal

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Dingler. Mot. at 12–13; see Corfee Decl. Ex. A. The fees in this case were contingent upon

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plaintiffs prevailing. Mot. at 17; Corfee Decl. ¶ 17. Ms. Corfee has over twenty-five years of

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experience and has specialized in ADA litigation for most of her career, handling approximately

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1800 ADA cases. Corfee Decl. ¶ 3. She started the law firm Corfee Stone & Associates. Id. Mr.

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Best has practiced civil rights litigation for twenty-two years, has worked at the firm for a total of

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approximately ten years, and has handled approximately 250 ADA cases. Best Decl. ¶¶ 3, 5. Mr.

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Khosrowshahi graduated from law school in May 2013, worked as a Federal Public Defender,

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and then worked at Corfee Stone & Associates from September to November 2014. Corfee Decl.

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¶ 9. Ms. Kennedy had six years of experience as a paralegal in private practice when she began

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working on this action. Id. ¶ 7. Ms. Dingler had been employed at the firm for over a year; she

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also had previously graduated from law school in London, and was a member of the Bar in

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England, although it is not clear to what extent she practiced law. Id. ¶ 8. Plaintiffs cite several

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cases from this district to show that $260 to $350 is the generally accepted hourly rate for

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experienced civil rights attorneys in Sacramento. Mot. at 13 (citing Kalani v. Nat’l Seating &

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Mobility, Inc., No. 13-00061, 2014 WL 3956669 (E.D. Cal. Aug. 13, 2014); Hall v. City of

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Fairfield, No. 10-0508, 2014 WL 1286001 (E.D. Cal. Mar. 31, 2014); and Johnson v. Wayside

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Prop., Inc., No. 13-1610, 2014 WL 6634324 (E.D. Cal. Nov. 21, 2014)).

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This case required a substantial amount of time and labor, but did not involve

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complex or novel legal issues. As for Ms. Corfee, who has extensive experience and founded the

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law firm, the court finds $300 per hour to be an appropriate rate. See Kalani, 2014 WL 3956669,

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at *2–3; see also Johnson v. San, No. 15-162, 2015 WL 7188245, at *5 (E.D. Cal. Nov. 16,

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2015), report and recommendation adopted, 2016 WL 659791 (Feb. 18, 2016) (awarding founder

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of law firm with twenty-one years’ experience handling disability-related issues a rate of $300 an

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hour). As for Mr. Best, who is not a partner at the firm but has twenty-two years’ experience

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practicing civil rights litigation, the court finds his rate of $285 per hour is reasonable. See

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Wayside Prop., Inc., 2014 WL 6634324, at *8; see also Hall, 2014 WL 1286001, at *7. As for
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Mr. Khosrowshahi, a junior associate with relatively little experience, the court finds a reasonable

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rate is at the lower end for associates, $150 per hour. See Wayside Prop., Inc., 2014 WL

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6634324, at *8 (awarding an associate with less than two years’ experience a rate of $150 per

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hour; finding range of $150 to $175 is the generally accepted hourly rate for associates in

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Sacramento).

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Plaintiffs have not provided information about the prevailing market rates for

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paralegals in Sacramento. Based on the court’s own research, rates awarded for paralegals in this

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district have ranged from $75 per hour up to $150 per hour. See Hall, 2014 WL 1286001, at *8

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(recognizing disagreement among judges and awarding $150 per hour); see also Kalani, 2014

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WL 3956669, at *3 (awarding rates of $115 per hour and $85 per hour to paralegals with ten and

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five years’ experience, respectively); Joe Hand Promotions, Inc. v. Albright, No. 11-2260, 2013

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WL 4094403, at *3 (E.D. Cal. Aug. 13, 2013) (“[T]he paralegal rate favored in this district is $75

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per hour.” (quotation marks and citation omitted)). Given Ms. Kennedy’s and Ms. Dingler’s

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experience of six years and one year, respectively, and the relatively straightforward nature of this

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case, the court finds a reasonable hourly rate is $100 for Ms. Kennedy and, on the current record,

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$85 for Ms. Dingler.

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Applying these rates to the hours awarded above, the lodestar in this case is
$135,920.10, calculated as follows:

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Attorney/Paralegal

Hours

Rate

Amount

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Catherine M. Corfee

357.86

$300

$107,358

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Zachary Best

78.2

$285

$22,287

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Arash Khosrowshahi

44.26

$150

$6,639

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Tenieshsa Kennedy

5.49

$100

$549

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Rebecca Dingler

12.26

$85

$1,042.10

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TOTAL

$137,875.10

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3.

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As stated above, plaintiffs do not seek an upward adjustment or application of a

Adjustments to the Lodestar

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multiplier to the lodestar amount. And for the reasons discussed above, defendants’ arguments do

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not warrant a downward adjustment of the lodestar beyond the reductions already made in

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determining the reasonable hours and hourly rates. In light of the strong presumption that the

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lodestar represents a reasonable fee, the court does not adjust the lodestar figure. See Del. Valley

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Citizens’ Council for Clean Air, 478 U.S. at 565.

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B.

Costs

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Plaintiffs also seek $8,590.94 in costs for filing fees, expert fees, process server

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fees, deposition fees, and online research fees. Mot. at 19; Corfee Decl. ¶¶ 51–55 & Exs. E–I.

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Defendants do not object to these costs.

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Costs generally are awarded to the prevailing party in a civil action as a matter of

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course unless the court directs otherwise. Fed. R. Civ. P. 54(d). The court must limit an award of

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costs to those defined in 28 U.S.C. § 1920 unless otherwise provided for by statute. Grove v.

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Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 579–80 (9th Cir. 2010). In an action under the ADA,

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the prevailing party is entitled to recover “a reasonable attorney’s fee, including litigation

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expenses, and costs.” 42 U.S.C. § 12205; Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir.

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2002); see Moore v. Cisneros, No. 12-00188, 2012 WL 6523017, at *9 (E.D. Cal. Dec. 13, 2012)

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(citing Lovell, 303 F.3d at 1058) (finding filing fee, costs of service, and property inspection fee

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compensable), adopted in full by Order, Jan. 15, 2013, No. 12-00188. Here, plaintiffs’ fees and

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costs of service are compensable and should be awarded.

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IV.

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CONCLUSION
For the foregoing reasons, the court GRANTS IN PART plaintiffs’ motion.

Defendants are directed to pay plaintiffs $137,875.10 in attorney’s fees and $8,590.94 in costs.
IT IS SO ORDERED.
DATED: September 14, 2016.

UNITED STATES DISTRICT JUDGE

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