Johnson v. Wayside Property, Inc et al

Filing 32

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 11/20/2014 ORDERING 25 that plaintiff's motion for attorney's fees be, and the same hereby is, GRANTED in PART. Defendants are directed to pay $14,387.50 in fees and $690 in costs to plaintiff. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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SCOTT JOHNSON,
Plaintiff,

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CIV. NO. 2:13-1610 WBS AC
MEMORANDUM AND ORDER RE: MOTION
FOR ATTORNEY’S FEES AND COSTS

v.
WAYSIDE PROPERTY, INC., a
California Corporation, and
J&C M HOLDING, INC., a
California Corporation,
Defendants.

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----oo0oo---Plaintiff Scott Johnson is a quadriplegic and brought

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this action based on barriers he encountered at defendant Wayside

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Property, Inc., which is owned by defendant J&CM Holding, Inc.

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After the court granted partial summary judgment in favor of

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plaintiff, the parties settled the case for $6,000 and reasonable

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attorney’s fees and litigation expenses.

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amount, plaintiff now requests the court to determine his award

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of attorney’s fees and costs.
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Unable to agree on the

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I.

Factual and Procedural History

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Plaintiff filed this action on August 5, 2013 and

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asserted claims for (1) violations of the Americans with

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Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; (2)

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violations of the Unruh Civil Rights Act (“UCRA”), Cal. Civ. Code

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§§ 51 et seq.; (3) violations of the California Disabled Persons

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Act, Cal. Civ. Code § 54; and (4) common-law negligence.

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Plaintiff alleged he encountered the following three barriers

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when visiting Wayside Property, Inc.: (1) inadequate handicap

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parking; (2) a “panel style” door handle; and (3) a counter that

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exceeded the maximum height of thirty-six inches.
Because the parties were unable to reach a settlement,1

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plaintiff filed a motion for summary judgment.

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not dispute that the inadequate handicap parking and “panel

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style” door handle constituted barriers under the ADA or that

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defendants had adequately remedied those barriers after plaintiff

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initiated this action.

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the counter, but instead argued they had provided an equivalent

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facilitation under the ADA by providing a clipboard and posting a

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sign offering assistance to handicap patrons.

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The parties did

Defendants did not reduce the height of

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The court

Over a period of several months, the parties engaged in
unsuccessful attempts at settlement. Although plaintiff and
defendants discuss the details of their settlement negotiations
in the instant motion and attack each other as unreasonable
during negotiations, the court does not find that the conduct of
either party during settlement negotiations in this case should
affect the award of attorney’s fees. Defendants’ suggestion that
the court should reduce the amount of fees to the total fees at
the time of plaintiff’s highest settlement demand does not pass
muster because it fails to account for the time plaintiff’s
counsel expended to prevail on plaintiff’s motion for summary
judgment and the instant motion seeking fees.
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concluded that the clipboard was not an equivalent facilitation

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and entered judgment in favor of plaintiff on his ADA and UCRA

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claims, but found that disputed issues of fact prevented it from

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determining the appropriate award of damages on plaintiff’s UCRA

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claim.

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(Docket No. 20.)
Shortly after the court granted partial summary

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judgment in favor of plaintiff, the parties settled the action

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for $6,000 in damages and “reasonable attorney’s fees and

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litigation expenses, the amount of which may be determined by

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noticed motion.”

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motion for a determination of reasonable attorney’s fees and

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costs is now before the court.

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II.

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(Pl.’s Ex. 2 (Docket No. 25-4).)

Plaintiff’s

Discussion
Pursuant to 42 U.S.C. § 12205, a federal court may

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award “a reasonable attorney’s fee” to the prevailing party in an

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action under the ADA.

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§§ 52(a), 55 (authorizing an award of attorney’s fees to a

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prevailing party in suits brought under California civil rights

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statutes).

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merits of his claim materially alters the legal relationship

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between the parties by modifying the defendant’s behavior in a

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way that directly benefits the plaintiff.”

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U.S. 103, 111-12 (1992).

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plaintiff was the prevailing party and is entitled to an award of

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reasonable attorney’s fees and costs under the parties’

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settlement agreement, but argue that the $23,600 in fees and

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$7,417.50 in costs plaintiff requests are unreasonable.

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42 U.S.C. § 12205; see also Cal. Civ. Code

A plaintiff prevails “when actual relief on the

Farrar v. Hobby, 506

Here, defendants do not dispute that

The court calculates a reasonable amount of attorney’s
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fees by following a two-step process.

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determines the lodestar calculation--“the number of hours

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reasonably expended on the litigation multiplied by a reasonable

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hourly rate.”

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Second, the court may adjust the lodestar figure “pursuant to a

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variety of factors.”

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1209 (9th Cir. 2013) (internal quotation marks omitted); see also

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Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.

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1975) (enumerating factors on which courts may rely in adjusting

First, the court

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Gonzalez v. City of Maywood, 729 F.3d 1196,

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the lodestar figure).

There is a strong presumption, however,

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that the lodestar amount is reasonable.

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Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).

Fischer v. SJB-P.D.

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In determining the size of an appropriate fee award,

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the Supreme Court has emphasized that courts need not “achieve

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auditing perfection” or “become green-eyeshade accountants.”

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v. Vice, --- U.S. ---, 131 S.Ct. 2205, 2217 (2011).

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because the “essential goal of shifting fees . . . is to do rough

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justice,” the court may “use estimates” or “take into account

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[its] overall sense of a suit” to determine a reasonable

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attorney’s fee.

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A.

Fox

Rather,

Id.

Lodestar Calculation

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1.

Hours Reasonably Expended

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Plaintiff submits a billing statement itemizing the

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time spent by attorneys Mark Potter, Russell Handy, Raymond

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Ballister, Phyl Grace, and Amanda Lockhart.

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No. 25-5).)

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routine and boilerplate, defendants object to a number of

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particular time entries for senior attorneys Potter, Handy, and
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(Pl.’s Ex. 3 (Docket

Along with generally characterizing the case as

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Ballister.
A recurring objection to all three attorneys’

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billings is that the more experienced attorneys performed work

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that could have been performed by a less experienced associate.

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The Ninth Circuit has indicated, however, that a court “may not

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attempt to impose its own judgment regarding the best way to

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operate a law firm, nor to determine if different staffing

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decisions might have led to different fee requests.”

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City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008).

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Moreno v.
The

Ninth Circuit explained,
The district court may have been right that a larger
firm would employ junior associates who bill at a
lower rate than plaintiff’s counsel, but a larger firm
would also employ a partner--likely billing at a
higher rate than plaintiff’s counsel--to supervise
them. And the partner in charge would still have had
to familiarize himself with the documents, a step that
plaintiff’s counsel avoided by reviewing the documents
herself. Moreover, lead counsel can doubtless complete
the job more quickly, being better informed as to
which documents are likely to be irrelevant, and which
need to be examined closely.
Modeling law firm
economics drifts far afield of the Hensley calculus
and the statutory goal of sufficiently compensating
counsel in order to attract qualified attorneys to do
civil rights work.

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Id. at 1114-15.

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reasonableness of the time expended by the billing attorney, not

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assess whether another attorney could have completed the task for

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the same or less expense.

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The court’s task is thus to evaluate the

a. Billings by Potter
Defendants object to Potter’s billing of 1.6 hours on

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January 11, 2014 for the following tasks: “Reviewed and analyzed

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the CASp report submitted by the defense; updated the Trial
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Folder; some research on issues raised.”

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Although the 1.6-hour duration alone does not cause significant

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concern, the entry’s vagueness as to what Potter researched

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prevents the court from assessing the reasonableness of the time

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expended.

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which an attorney should not bill a client.

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County of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) (“It

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simply is not reasonable for a lawyer to bill, at her regular

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hourly rate, for tasks that a non-attorney employed by her could

(Pl.’s Ex. 3 at 2.)

Updating a trial folder is also a clerical task for
See Davis v. City &

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perform at a much lower cost.”); Bakewell v. Astrue, No. 3:10–CV–

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01525–JE, 2013 WL 638892, at *3 (D. Or. Jan. 9, 2013) (“[C]osts

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associated with clerical tasks are typically considered overhead

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expenses reflected in an attorney’s hourly billing rate, and are

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not properly reimbursable.”).

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research Potter performed and the clerical work of an unknown

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duration, the court will reduce this entry to 1 hour.

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Based on the vagueness as to what

Defendants next object to Potter’s billing of 2.2 hours

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on June 17, 2014 for the following tasks: “Marshaled the

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evidence, created the photos exhibit and drafted the Separate

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Statement of Undisputed Fact.”

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exhibit” consists of eight photographs without any description or

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analysis, and plaintiff’s Statement of Undisputed Facts contains

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18 discrete facts that are copied, almost verbatim, from

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plaintiff’s memorandum in support of his motion for summary

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judgment.

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brief review by an attorney, these clerical tasks could easily be

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performed by a legal secretary or paralegal at most.

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Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989);
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(Pl.’s Ex. 3 at 2.)

(See Docket Nos. 11-2, 11-7, 11-8.)

The “photos

Except for a

See

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Davis, 976 F.2d at 1543; Bakewell, 2013 WL 638892, at *3.

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Accordingly, the court will reduce this entry to .5 of an hour to

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account for Potter’s time to select the appropriate photographs

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and review the simple filings.

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Defendants generally object to the 5.2 hours Potter

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expended preparing the motion for summary judgment and the

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memorandum in support of it and 3.3 hours Potter expended

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researching whether the clipboard was an equivalent

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accommodation.

The court agrees that .2 for preparing the

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boilerplate notice of the motion, arguably a clerical task, is

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excessive and will reduce that entry to .1.

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substantive work on the summary judgment motion, however, the

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court does not find that the time expended is clearly excessive,

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especially because plaintiff prevailed on the motion and had to

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respond to the court’s request for supplemental briefing on

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whether the clipboard was an adequate accommodation.

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With Potter’s

Potter also billed for an estimated 5 hours to prepare

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the reply brief in support of the pending motion for attorney’s

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fees and an estimated 1 hour to prepare for and attend the oral

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argument.

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the actual time spent in preparing plaintiff’s reply brief.

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court notes, however, that Potter expended only 2 hours in

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preparing plaintiff’s memorandum in support of his motion for

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fees and finds that the same amount of time would be a reasonable

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expenditure to prepare plaintiff’s reply.

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determined that oral argument was unnecessary and vacated the

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hearing, Potter did not have to expend any time preparing for or

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attending oral argument.

In plaintiff’s reply brief, Potter did not indicate
The

Because the court

The court will therefore reduce the
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estimated entries to 2 hours.

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b. Billings by Handy

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Defendants object to the 2.1 hours Handy billed for

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public records research on July 28, 2013 on the basis that this

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clerical task is not billable as attorney’s fees.

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plaintiff’s recent and unrelated disability access cases, Potter

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billed 2.1 hours for this precise task and the court concluded

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that a significant aspect of the work was clerical in nature and

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therefore reduced the entry by 1 hour.

In one of

See Johnson v. Allied

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Trailer Supply, No. 2:13–CV-1544 WBS EFB, 2014 WL 1334006, at *2

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(E.D. Cal. Apr. 3, 2014).

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search performed in Allied Trailer Supply from the search

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performed here and the court thus finds that a similar 1-hour

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reduction is merited.

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Handy does not distinguish the records

As to Handy’s entry of 3.3 hours for traveling to and

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attending the hearing on plaintiff’s motion for summary judgment,

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plaintiff’s counsel have adequately accounted for Handy’s time at

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the oral argument, (Pl.’s Reply at 11:15-18), and plaintiff is

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entitled to seek fees for reasonable travel time2 to and from the

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court, see Davis, 976 F.2d at 1543.

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that Handy’s expenditure of 5.1 hours to research the clipboard

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issue is clearly excessive because the court requested

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supplemental briefing and plaintiff prevailed in obtaining

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summary judgment on that issue.

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The court also does not find

c. Billings by Ballister
Although CDA is located in San Diego, Potter billed
only one hour for travel to and from the courthouse for the
argument, (Pl.’s Reply at 11:19-21), which is not excessive when
compared to the time local counsel may have expended on travel.
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Defendants object to the 2.2 hours Ballister billed to

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draft “plaintiff’s written discovery: Requests for Admission;

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Interrogatories; and Requests for Production.”

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5.)

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written discovery is the same in Title III barrier cases,” but

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argues that the 2.2 hours is reasonable because “these templates

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must be modified in every case.”

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Although plaintiff’s counsel indicate that this process involves

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numerous steps, such as reviewing the investigator’s findings,

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photographs, and pleadings, Ballister’s billing entry does not

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indicate that he performed any of these tasks.

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billing entry does not reflect any discrete tasks to fashion the

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boilerplate discovery for the case at hand, the court will reduce

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the entry by .5 of an hour.

(Pl.’s Ex. 3 at

Plaintiff’s counsel recognize that “the basic template for

(Pl.’s Reply at 13:11-12.)

Because the

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Having made the above reductions, the court finds that

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Potter reasonably expended 28.6 hours; Handy reasonably expended

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12.8 hours; Ballister reasonably expended 2.5 hours; Grace

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reasonably expended 2.3 hours; and Lockhart reasonably expended

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6.1 hours.

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2. Reasonable Hourly Rate

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The court must multiply the reasonable hours expended

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in this litigation by a reasonable hourly rate to calculate the

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lodestar amount.

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rates claimed, the court looks to “the prevailing market rates in

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the relevant community,” Blum v. Stenson, 465 U.S. 866, 895

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(1984), “for similar work performed by attorneys of comparable

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skill, experience, and reputation.”

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Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 1986).
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To determine the reasonableness of the hourly

Chalmers v. City of Los
In general,

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“the relevant community is the forum in which the district court

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sits.”

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burden is on the party seeking fees “to produce satisfactory

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evidence . . . that the requested rates are in line with those

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prevailing in the community for similar services by lawyers of

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reasonably comparable skill, experience and reputation.”

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465 U.S. at 895 n.11.

Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).

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The

Blum,

Plaintiff’s counsel seek hourly rates of $425 for
Potter, Handy, and Ballister, $225 for Grace, and $175 for

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Lockhart.

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Access (“CDA”), which is located in San Diego, California.

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Potter is the managing partner of CDA, has litigated over 2,000

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disability cases, and has devoted more than 95% percent of his

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practice to “disability issues” for almost 21 years.

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Decl. ¶¶ 2, 14.)

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practiced disability litigation for at least 16 years.

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15; Pl.’s Mem. at 28.)

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been in practice for 31 years and has focused exclusively on

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disability access cases for the past 10 years.

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16; Pl.’s Mem. at 8:2.)

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years of experience and has maintained an exclusive disability

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access practice for the past 3 years.

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Lockhart is an associate at CDA and was admitted to the practice

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of law in June 2013.

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visited Nov. 11, 2014).

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All of the attorneys practice at Center for Disability

(Potter

Handy is also a partner at CDA and has
(Id. ¶

Ballister is an associate at CDA who has

(Potter Decl. ¶

Grace is an associate at CDA with 20

(Potter Decl. ¶ 17.)

(Id. ¶ 18); see www.calbar.org (last

Only seven months ago, in an unrelated ADA case brought

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by plaintiff, this court examined fee awards in relevant cases

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and found that hourly rates of $300 for Potter and Ballister and
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$175 for Grace were reasonable for disability access cases in the

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Sacramento legal community.

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1334006, at *4-5.

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also sought hourly rates of $425 for Potter and Ballister and

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$270 for Grace.

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counsel relied on cases outside of this district to support the

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hourly rates they requested.

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“Comparisons to cases citing prevailing hourly rates in the

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Central District and Southern District are irrelevant to the

See Allied Trailer Supply, 2014 WL

In Allied Trailer Supply, plaintiff’s counsel

Similar to the fees motion at hand, plaintiff’s

As the court emphasized,

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determination of prevailing rates in the Eastern District.”

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at *4.

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Id.

“The hourly rate for successful civil rights attorneys

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is to be calculated by considering certain factors, including the

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novelty and difficulty of the issues, the skill required to try

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the case, whether or not the fee is contingent, the experience

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held by counsel and fee awards in similar cases.”

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F.3d at 1114.

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civil rights practice, it would be naive to equate the level of

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skill required to litigate a routine disability access case with

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the level of skill required to successfully litigate a more

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complicated civil rights case raising novel or complicated

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constitutional issues.

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Moreno, 534

While disability access cases are a subset of

Here, plaintiff’s counsel recognize that the “basic

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template for written discovery is the same in Title III barrier

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cases” and that counsel were “working from templates” when

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preparing the briefs in support of plaintiff’s motion for summary

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judgment.

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counsel also indicate that the case at hand “did not present
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(Pl.’s Reply at 8:27-28, 13:11-12.)

Plaintiff’s

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specialized or skillful challenges and was a fairly straight-

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forward application of the law” without any “significant legal

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issues of first impression.”

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(Pl.’s Mem. at 11:18-19, 12:22-24.)

This is not to discredit the importance of disability

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access cases, but only to recognize that civil rights is a broad

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area of practice and the reasonable hourly rate merited in

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routine disability access cases understandably falls below the

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hourly rate charged in other more complicated civil rights cases.

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Even within the context of the ADA, more complicated employment

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cases may merit a higher fee than the reasonable fee in the

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hundreds of routine disability access cases pending in this

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district.

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AWI DLB, 2013 WL 4780440, at *8-9 (E.D. Cal. Sept. 5, 2013)

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(awarding, in the Fresno Division, hourly rates of $325 to an

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attorney with over 30 years of experience and $250 hourly rate to

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an attorney with 15 years of experience in a more complicated ADA

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employment case).

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See, e.g., Ramirez v. Merced County, Civ. No. 1:11-531

Unsatisfied with the court’s recent determination as to

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the reasonable hourly rates for routine disability access cases

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in the Sacramento legal community, plaintiff’s counsel offer new

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evidence in support of their requested rates.

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counsel does not, however, cite to any new cases finding that a

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reasonable hourly rate in Sacramento for an attorney litigating a

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routine disability access case against a private company exceeds

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$300 for a partner or $175 for an associate.

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provide any new evidence showing that Sacramento attorneys

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representing plaintiffs in routine disability access cases charge

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rates in excess of the rates the court found reasonable in Allied
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Plaintiff’s

Nor do counsel

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Trailer Supply.

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Instead, plaintiff’s counsel rely heavily on their

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retained “attorneys’ fee expert,” attorney John O’Connor.

While

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some courts have found O’Connor’s testimony about hourly rates

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helpful or persuasive, (see O’Connor Decl. ¶¶ 17-21 (citing

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cases)), his declaration in this case is not helpful in

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determining the reasonable rates for counsel.

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that “[a] rate of $450 to $500 per hour is what [he] would

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determine to be the standard rate for a twenty year attorney at a

O’Connor opines

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reputable firm in the Northern California legal market.”

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(O’Connor Decl. ¶ 25.)

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Trailer Supply, however, the relevant market here is Sacramento,

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not Northern California.

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in the nearby San Francisco legal community exceed those in this

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legal community.

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Sacramento or surrounding counties, none of the cases were

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disability access cases or in federal court.

As this court emphasized in Allied

It is without question that the rates

While O’Connor identifies fees awarded in

(See id. ¶¶ 27-30.)

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O’Connor next posits that the court should utilize the

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Laffey Matrix that is maintained by the Department of Justice in

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Washington, D.C. to determine the reasonable hourly rates for

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this case.

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practice in the Washington, D.C. legal community and has been

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rejected as an adequate tool to assess market rates in this

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district.

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1:12-CV-00071–LJO–GAS, 2013 WL 1627740, at *3 (E.D. Cal. Apr. 15,

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2013), findings and recommendation adopted, 2013 WL 1896273 (E.D.

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Cal. May 6, 2013) (concluding that the Laffey Matrix is

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“irrelevant to determining reasonable hourly rates for” counsel
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The suggested Laffey Matrix rate contemplates

See Fitzgerald v. Law Office of Curtis O. Barnes, No.

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in the Eastern District of California).

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fails to account for differences in hourly rates depending on the

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area of practice.

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The Laffey Matrix also

O’Connor nonetheless suggests that the Laffey Matrix

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can be adjusted for the Sacramento legal community by relying on

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the 2014 federal locality pay differentials.

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locality pay differentials, federal judicial employees in the

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Washington-Baltimore area receive a +24.22% locality pay

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differential, while federal judicial employees in Sacramento

Under these

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receive a +22.20% locality pay differential, or 1.6% less.

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Taking this difference, O’Connor proposes to reduce the Laffey

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Matrix rates by 1.6% to account for practice in the Sacramento

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legal community.

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authority suggesting that the locality pay differential for

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federal judicial employees, which includes non-lawyers, is

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related to the difference in hourly rates for private practice in

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different legal communities.

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been my experience that the rate structure of the San Francisco

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Bay Area is virtually identical to that in the greater Los

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Angeles area.”

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rates in Los Angeles and San Francisco according to O’Connor, the

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locality pay differential for Los Angeles is 27.16% and the

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locality pay differential for San Francisco is 35.15%.

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is thus not persuaded that a reduction based on the federal

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locality pay differential is a reliable method to adjust the

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Laffey Matrix rates for a different legal community.

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O’Connor fails, however, to explain or cite any

In fact, O’Connor states, “It has

(O’Connor Decl. ¶ 11.)

Despite the similarity in

The court

Lastly, O’Connor indicates he is “well aware” of the
rates charged by national “labor specialty firms” such as Jackson
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Lewis and Littler Mendelson and the local firm Downey Brand.

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(Id. ¶ 34.)

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this case are less than the rates those firms charge for

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partners.

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“labor specialty firms” or Downey Brand handle routine disability

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access cases or, even assuming they do, identify the rates

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charged to individual plaintiffs in those cases.

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He indicates that the rates the partners seek in

(Id.)

O’Connor does not suggest, however, that the

Plaintiff’s counsel also urge the court to rely on the
“2014 Real Rate Report: The Industry’s Leading Analysis of Law

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Firm Rates, Trends, and Practices,” which is published by CEB and

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Datacert | TyMetrix.

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Real Rate Report evaluated fees paid by 90 companies to more than

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5,600 law firms and is specifically designed for lawyers who work

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for “corporate clients.”

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also recognizes that rates vary based on the practice area, (id.

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at vi), and includes reductions to hourly fees for numerous

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corporate practice areas, but does not address disability access

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practice, (id. at 29).

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a helpful benchmark for lawyers litigating disability access

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cases for non-corporate clients.3

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(Pl.’s Ex. 12 (Docket No. 25-14).)

(Id. at viii.)

The

The Real Rate Report

The Real Rate Report thus cannot provide

Despite their creative efforts to justify their hourly

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rates, plaintiff’s counsel have not cited a single a case from

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the Sacramento Division of the Eastern District or provided an

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affidavit of a Sacramento attorney representing plaintiffs in

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Notwithstanding the inapplicability of the Real Rate
Report to the case at hand, it supports only the $425 fee
requested for Potter, as plaintiff indicates it would suggest
hourly rates of $418.64 for Handy and $381.67 for Ballister.
(Pl.’s Mem. at 7:21-8:2.)
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3

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routine disability access cases that supports the rates they

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seek.

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that the reasonable hourly rate for Potter is $300.

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also finds that $300 is a reasonable hourly rate for Handy as he

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is a partner with similar experience and expertise as Potter.

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As it found only seven months ago, the court again finds
The court

With regard to Ballister, the court mistakenly assumed

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based on his 31 years of experience with 10 years exclusive to

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disability access cases that he was a partner when it found that

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$300 per hour was a reasonable rate for his time in Allied

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Trailer Supply.

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not a partner at CDA.

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lengthy experience, the court nonetheless finds that a reasonable

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rate for his services would be comparable to that of a junior

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partner and therefore finds that he should be compensated at a

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rate of $260 per hour.

16

CV–01565 MCE GGH, 2013 WL 1326546, at *8 (E.D. Cal. Apr. 2, 2013)

17

(recognizing that junior partners with 7-10 years of experience

18

practicing civil rights law routinely received rates between $230

19

and $260 in the Eastern District).

20

2014 WL 1334006, at *6.

Ballister, however, is

(Pl.’s Mem. at 8:1-2.)

Based on his

See Lehr v. City of Sacramento, No. 2:07–

Consistent with the court’s finding in Allied Trailer

21

Supply, a reasonable rate for Grace is $175, which is the “higher

22

end for associates in Sacramento.”

23

WL 1334006, at *6; see also Joe Hand Promotions, 2013 WL 4094403,

24

at *3 (“The court’s independent research shows that a reasonable

25

rate for associates working in this community is between $150 and

26

$175 per hour.”).

27

years and the court therefore finds that a reasonable hourly rate

28

for her services is at the lower end for associates at $150 per
16

Allied Trailer Supply, 2014

Lockhart has been practicing for less than two

1

hour.

2
3

Accordingly the lodestar in this case is $14,387.50,
calculated as follows:

4

Potter

28.6

x

$300

=

$ 8,580.00

5

Handy

12.8

x

$300

=

$ 3,840.00

6

Ballister:

2.5

x

$260

=

$

650.00

7

Grace:

2.3

x

$175

=

$

402.50

8

Lockhart:

6.1

x

$150

=

$

915.00

9

$14,387.50

10

Because neither plaintiff nor defendants seek a

11

multiplier or reduction to the lodestar and there is “strong

12

presumption that the lodestar amount is reasonable,” Fischer, 214

13

F.3d at 1119 n.4, the court finds that no further adjustment to

14

the lodestar is warranted.4

15

B. Costs

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Plaintiff also seeks costs in the amount of $6,727.50

17

for the work of their “attorney’s fees expert,” which consists of

18

9.5 hours at $545 per hour for O’Connor and 6.2 hours at $250 per

19

hour for Jessica Shafer.

20

seriously questions the use and necessity of an “attorney’s fees

21

expert” in a routine fees motion.

22

simply submitted declarations from local counsel practicing in

23
24
25
26
27
28

4

As a general matter, the court

In prior motions, parties have

Although plaintiff’s counsel do not seek an adjustment
to the lodestar, they address the relevant factors under Kerr.
As to the undesirability of the case, counsel indicate that the
“clientele is largely (as in the present case) very low income or
indigent.” (Pl.’s Mem. at 14:24-25.) It is an insult to the
intelligence of this court to suggest that the plaintiff in this
case is “low income or indigent” based on the hundreds of
disability access cases he has successfully brought in this court
alone.
17

1

the relevant area indicating their hourly rates.

2

from Sacramento attorneys who represent plaintiffs in routine

3

disability access cases would have been far more helpful in this

4

case than O’Connor’s “expert opinion.”

5

above, O’Connor’s assessment of the reasonable hourly rates in

6

this case relied on faulty assumptions and was not based on rates

7

in the relevant practice area and legal community.

8
9

Declarations

As the court explained

Here, plaintiff also expended $6,727.50 in an effort to
gain approximately $5,970 in additional fees.

The court does not

10

find it reasonable to incur costs at more than or equal to the

11

amount in dispute and then request the defendants to bear the

12

burden of that questionable economic decision.

13

commonly utilized experts, an attorney serving as an expert on

14

attorney’s fees also seems to replace work that the counsel

15

seeking fees could have performed.

16

O’Connor’s work as marshaling the evidence to present it to the

17

court, (Pl.’s Reply at 6:7-8), is precisely the legal work that

18

plaintiff’s counsel, or even a paralegal, could have performed,

19

and retaining an “expert” attorney to do so was wasteful and

20

unnecessary.5

21

expert charged an hourly rate that exceeds the reasonable rate

22

for plaintiff’s lead counsel by $245 per hour.

23

because the court finds that the expenditure of $6,727.50 in

Unlike with more

Plaintiff’s description of

This even more outrageous when, as here, the

Accordingly,

24
Plaintiff’s counsel appear to conflate the “attorney”
time they spent in preparing the motion for attorney’s fees with
the “attorney” time of their “expert,” arguing that they should
recover the expert fees as costs because “[a] plaintiff is
‘entitled to attorney fees for preparing th[e] fee
motion.’” (Pl.’s Reply at 7:9-11 (quoting Blackwell v. Foley,
724 F. Supp. 2d 1068, 1080 (N.D. Cal. 2010)).)
18
5

25
26
27
28

1

costs for the expert testimony of O’Connor was unnecessary,

2

unreasonable in light of the amount at issue, and unhelpful in

3

determining the reasonable hourly rate for a disability access

4

attorney in Sacramento, the court will not require defendants to

5

reimburse plaintiff for those costs.

6

Plaintiff also seeks costs in the amount of $690 for

7

expenses related to plaintiff’s investigation, filing fee, and

8

service fees.

9

to these costs and the court will therefore award them to

10

(See Pl.’s Ex. 3 at 1.)

Defendants do not object

plaintiff.

11

IT IS THEREFORE ORDERED that plaintiff’s motion for

12

attorney’s fees be, and the same hereby is, GRANTED in part.

13

Defendants are directed to pay $14,387.50 in fees and $690 in

14

costs to plaintiff.

15

Dated:

November 20, 2014

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