Johnson v. Ballew et al

Filing 46

ORDER signed by District Judge John A. Mendez on 4/20/2020 GRANTING IN PART 43 Motion for Attorney Fees. The Court awards Plaintiff $5,400.00 in attorney's fees and $400.00 in costs, for a total of $5,800.00. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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Plaintiff,

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v.
FRED ARTHUR BALLEW; TATA FOODS
CORPORATION, a California
Corporation,

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Defendants.

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Case No. 2:14-cv-01672-JAM-DB
ORDER RE PLAINTIFF’S MOTION
FOR ATTORNEY’S FEES AND COSTS

Plaintiff Scott Johnson (“Plaintiff”) sued Defendants Fred

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Arthur Ballew and Tata Foods Corporation (“Defendants”), alleging

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that their business, a Denny’s restaurant, does not comply with

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state and federal disability access laws.

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Court granted partial summary judgment on Plaintiff’s claims

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arising under the Americans with Disabilities (“ADA”) and Unruh

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Civil Rights Act.

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$24,608.80 in attorney’s fees and costs under 42 U.S.C. § 12205 and

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Cal. Civ. Code § 52(a).

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oppose Plaintiff’s motion.

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grants Plaintiff’s motion but reduces the amount of fees and costs

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sought by Plaintiff.1

Order, ECF No. 41.

Compl., ECF No. 1.

The

Plaintiff now seeks

Mot. Fees, ECF No. 43.

Defendants did not

For the reasons stated below, the Court

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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 April 21, 2020.
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I.

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A.

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Attorney’s Fees
1.

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OPINION

Legal Standard

When determining the reasonableness of an attorney’s fee

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request, the Court engages in a two-step process.

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determines the amount of a reasonable fee by multiplying the number

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of hours reasonably expended on the litigation by a reasonable

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hourly rate.

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total, the “lodestar” amount, yields a presumptively reasonable

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fee.

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First, the Court

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

This

2013).

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Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir.

Second, the Court decides whether to adjust the lodestar

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figure upward or downward pursuant to a variety of factors.

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1209.

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(2) novelty and difficulty of questions involved; (3) skill

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requisite to perform legal service properly; (4) preclusion of

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other employment by attorney due to acceptance of the case;

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(5) customary fee; (6) time limitations imposed by client or

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circumstances; (7) amount involved and results obtained;

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(8) experience, reputation, and ability of attorneys; (9) nature

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and length of professional relationship with client; and

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(10) awards in similar cases.

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526 F.2d 67, 70 (9th Cir. 1975); see also Resurrection Bay

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Conservation Alliance v. City of Seward, 640 F.3d 1087, 1095, n.5

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(9th Cir. 2011) (noting that two former factors—the fixed or

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continent nature of a fee and the desirability of a case—are no

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longer relevant).

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Id. at

Those factors include: (1) time and labor required;

Kerr v. Screen Extras Guild, Inc.,

“The essential goal in shifting fees (to either party) is to
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do rough justice, not to achieve auditing perfection.”

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Vice, 563 U.S. 826, 838 (2011).

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“overall sense of a suit, and may use estimates in calculating and

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allocating an attorney’s time.”

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2.

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Fox v.

Thus, the Court may consider its

Id.

Analysis
a.

Hours Reasonably Expended

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Plaintiff submits a “Billing Summary” and “Billing Statement,”

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itemizing the time spent by nine attorneys—Mark Potter, Phyl Grace,

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Dennis Price, Amanda Seabock, Chris Carson, Sara Gunderson, Elliott

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Montgomery, Bradley Smith, and Isabel Masanque—on this case.

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Ex. 2, ECF No. 43-4.

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of California orders granting fees to some of these attorneys, ECF

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No. 43-5, 43-6; a declaration from an attorney in support of

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Plaintiff’s attorneys’ rates, ECF No. 43-10; and an attorney rate

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report, ECF No. 43-9.

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billed by Plaintiff’s counsel are reasonable, and therefore reduces

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the following categories of billed hours accordingly.

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Pl.’s

Plaintiff also attached two Central District

The Court finds that not all of the hours

i.

Estimated Hours

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As an initial matter, Price’s billing statement includes

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“estimates” for “time to review opposition brief, draft the reply

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brief, attend oral argument” (8 hours).

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Defendants did not file an opposition to Plaintiff’s motion;

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reply brief was drafted; and no oral argument took place on this

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motion.

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occur is not reasonable.

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opposition, reply, and hearing will be omitted from the fee award.

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See, e.g., Johnson v. Yates, No. 2:14-cv-1189-TLN-EFB, 2017 WL

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3438737, at *2 (E.D. Cal. Aug. 10, 2017) (striking hours billed for

Pl.’s Ex. 2 at 11.
no

The Court finds that billing for activities that did not
Thus, the eight hours billed for the

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a hearing that was not held).

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ii.

Review of Minute Orders

Potter repeatedly bills for reviewing Minute Orders and

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Notices on the docket.

See Potter Billing Entries on: 9/16/2015,

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11/30/2015, 10/2/2017, 11/28/2017, 8/13/2018, 8/16/2018,1/18/2019,

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3/5/2019.

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sentences long, and often deal with boilerplate issues.

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September 16, 2015 Min. Order, ECF No. 14 (instructing the parties,

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in one sentence, to file a joint status report).

These Minute Orders and Notices are typically one to two
See, e.g.,

The Court finds

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it inefficient and unreasonable that the most experienced attorney,

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who coincidentally bills at the highest rate, is reviewing run-of-

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the-mill orders and notices from the Court or the Clerk’s Office.

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Accordingly, the Court reduces the hours billed by Potter for

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reviewing Minute Orders and Notices in half, from 0.8 hours to 0.4

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hours.

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iii. Instructions to Assistants
Several attorneys on the team repeatedly bill for giving

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instructions to their assistants.

See Potter Billing Entries on:

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8/18/2014, 6/18/2018, 6/27/2018, 6/28/2018, 8/3/2018, 8/7/2018,

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3/27/2019, 7/7/2019; Grace Billing Entries on: 7/13/2015, 8/6/2015,

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8/25/2015, 10/18/2017, 10/31/2017, 11/6/2017, 11/28/2017,

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8/10/2018, 8/21/2018, 8/25/2018, 9/5/2018, 9/14/2018, 9/26/2018,

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11/18/2018, 12/1/2018, 12/26/2018, 1/3/2019; Gunderson Billing

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Entries on: 6/20/2019, 6/26/2019, 6/27/2019, 8/2/2019, 8/8/2019,

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8/23/2019; Montgomery Billing Entries on: 4/11/2019, 4/16/2019,

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4/24/2019, 4/25/2019, 4/30/2019, 5/1/2019, 6/5/2019, 6/7/2019,

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6/10/2019, 6/12/2019, 6/14/2019.

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giving instructions to a legal assistant is either the only task or

These entries are ones for which

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the predominating one.

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billed.

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billed merely for instructing their legal assistants is excessive,

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and that the cumulative amount of time allegedly spent doing so is

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unreasonable.

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Together, these entries amount to 4.3 hours

The Court finds the number of times Plaintiff’s counsel

The Court thus, reduces the amount of time billed for giving

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instructions to legal assistants by half.

Accordingly, Potter’s

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entries will be reduced from 0.8 hours to 0.4 hours; Grace’s

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entries will be reduced from 1.7 hours to 0.8 hours; Gunderson’s

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entries will be reduced from 0.6 to 0.3 hours; and Montgomery’s

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entries will be reduced from 1.2 hours to 0.6 hours.

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to a total of 2.2 hours deducted.

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iv.

This amounts

Other Attorneys

The Court is not persuaded by Plaintiff’s explanation as to

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why it was necessary for nine attorneys to work on this simple case

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for which Plaintiff’s counsel has no shortage of experience.

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Mot. Fees at 12 (“The Center for Disability Access has been at the

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vanguard for ADA litigation, obtaining numerous favorable decisions

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that have shaped the face of disability rights litigation in

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California and the Ninth Circuit at large.”); see also Potter Decl.

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ECF No. 43-3, ¶¶ 6-8.

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litigation team involving multiple attorneys is justified in

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“important class action litigation,” Probe v. State Teachers’ Ret.

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Sys., 780 F.2d 776, 785 (9th Cir. 1986), the use of nine attorneys

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on the present case constitutes overstaffing.

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are excessive, redundant, or otherwise unnecessary are to be

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excluded when calculating a reasonable attorneys’ fee.”).

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See

While the Ninth Circuit has found a

See id. (“Hours that

The Court, thus, cuts hours attributable to unnecessary
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overstaffing and omits the hours billed by Carson, Smith, Seabock,

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and Masanque.

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1 hour for Smith, 2.1 hours for Seabock, and 7.2 hours for

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Masanque.

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overstaffing.

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time entries reasonable and not subject to reduction.

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the Court reduces Plaintiff’s counsel’s billing statement by 21.2

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hours.

This amounts to a total of 10.6 hours deducted for

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This results in a reduction of 0.3 hours for Carson,

The Court finds the rest of Plaintiff’s counsel’s

b.

In total,

Reasonable Hourly Rate

Plaintiff requests his attorneys’ time be compensated at the

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following rates: $595 per hour (Potter); $550 per hour (Grace);

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$450 per hour (Price and Gunderson); and $400 per hour

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(Montgomery).

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Potter Decl. at ¶¶ 6, 10, 11, 14, 15.

Judicial opinions within the Eastern District of California

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have found that $300 per hour is a reasonable rate for Potter.

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Johnson v. Bach Thuoc Vu, No. 2:14-cv-02786-JAM-EFB, 2017 WL

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2813210, at *3 (E.D. Cal. June 29, 2017).

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district’s decisions have found that $250 per hour is an

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appropriate rate for Grace.

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$150 per hour is a reasonable rate for junior associates in

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disability access cases in the Sacramento legal community.

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Plaintiff has not presented the Court with a compelling reason to

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depart from the rates awarded in other similar cases.

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Id.

Similarly, this

Finally, decisions provide that

Id.

Accordingly, based on their number of years of legal

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experience, the Court calculates the lodestar with reasonable

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hourly rates as: Potter at $300, Grace at $250, and other attorneys

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at $150.

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hours were stricken due to overstaffing.

As stated above, Carson, Smith, Seabock, and Masanque’s

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The resulting lodestar in

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this case is as follows:
Attorney
Potter
Grace
Price
Gunderson
Montgomery

Hours
7.7
6.8
3.1
2.1
1.5

Rate
$350.00
$250.00
$150.00
$150.00
$150.00

Total
$2,695.00
$1,700.00
$ 465.00
$ 315.00
$225.00
$5,400.00

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B.

Costs
1.

Legal Standard

The ADA authorizes an award of litigation expenses and costs

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to a prevailing party, including expert witness fees.

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Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002).

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may recover out-of-pocket expenses counsel normally charge fee-

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paying clients.

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The requested costs must be reasonable in amount.

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Marhoefer, 24 F.3d 16, 20 (9th Cir. 1994).

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2.

Lovell v.

A prevailing party

Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005).
Harris v.

Analysis

Plaintiff seeks litigation expenses in the amount of

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$2,781.30.

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fees ($400), investigator fees ($200), and expert fees ($1,655.88).

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Although Defendants did not file objections to these costs, other

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decisions in this district have not found this lack of objection

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relieves Plaintiff of providing supporting documentation for

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requested costs.

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investigation and expert costs where no bills were provided).

Those fees are composed of service fees ($245), filing

See Yates, 2017 WL 3438737, at *3 (denying

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Plaintiff did not attach receipts or bills verifying that the

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amounts billed for service and by his investigator were reasonable

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and necessary.

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investigator $200 to conduct this case’s investigation.

Potter provided a declaration that he paid his

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Potter

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Decl. ¶ 4.

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statement was submitted for his investigator and does not mention

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the service fee.

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whether these costs were reasonably incurred, the “Court will not

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award such an amount arbitrarily.”

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Potter’s declaration does not explain why no billing

As the Court has no basis upon which to judge

Id.

As for the expert fees, Plaintiff’s motion contains several

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inconsistencies.

Plaintiff’s brief in support of his motion

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requests expert fees for “retain[ing] an expert to conduct site

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inspection at the property and to prepare [an] [e]xpert report

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pursuant to the inspection” at a cost of $1,655.88.

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Meanwhile, Potter’s declaration says he “paid [his] expert

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$1,936.30 for traveling to site to conduct a site inspection.”

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Potter Decl. ¶ 5.

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“Cancelled Access Compliance Evaluation and Report.”

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ECF No. 43-8.

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place and the expert report was not produced.

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guess whether the expert fees amounted to $1,655.88 or $1,939.30.

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The Court declines to speculate and denies Plaintiff’s request to

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be reimbursed for this cost.

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only $400 in costs for the filing fee.

And the expert’s invoice bills $1,936.30 for a
Pl.’s Ex. 6,

Thus, it seems that the site inspection never took

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Mot. at 25.

The Court is left to

Accordingly, Plaintiff is awarded

II.

ORDER

For the reasons set forth above, the Court GRANTS in part

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Plaintiff’s Motion for Attorney’s Fees and Costs.

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Plaintiff $5,400.00 in attorney’s fees and $400.00 in costs, for a

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total of $5,800.00.

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IT IS SO ORDERED.
Dated:

April 20, 2020

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The Court awards