Johnson v. Bourbeau, et al.

Filing 41

ORDER signed by District Judge John A. Mendez on 12/8/2017 GRANTING 34 Motion for Attorney Fees. The Court awards Plaintiff $7,360.00 in attorney's fees and $440.00 in costs, for a total of $7,800.00. (Hunt, G)

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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,
v.
JOHN PAUL BORBEAU; TAQUERIA
YVETTE, INC., a California
Corporation,

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Defendants.

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Case No. 2:14-cv-1730 JAM-EFB
ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES

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Plaintiff Scott Johnson (“Plaintiff”) sued Defendants John

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Paul Bourbeau and Taqueria Yvette, Inc. (“Defendants”), alleging

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that two businesses, Taqueria Yvette and the Rusty Hook, did not

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comply with state and federal disability access laws.

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No. 1.

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injunctive relief, Consent Decree, ECF No. 17, and the Court

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granted partial summary judgment on Plaintiff’s first two claims

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arising under the Americans with Disabilities (ADA) and Unruh Civil

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Rights Act.

Compl., ECF

The parties settled the portion of the case relating to

Order, ECF No. 31.

Plaintiff voluntarily dismissed
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his third and fourth claims.

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now seeks attorney’s fees under 42 U.S.C. § 12205 and Cal. Civ.

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Code § 52(a) on his first and second claims. 1

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34.

Stipulation, ECF No. 33.

Plaintiff

Mot. Fees, ECF No.

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I.

OPINION

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Plaintiff believes that the Court should award him “reasonable

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attorney fees” and litigation expenses in the amount of $16,365.98.

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Mot. Fee at 1.

Defendants’ counsel filed a statement of non-

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opposition, ECF No. 37, after being unable to contact his clients.

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He objects only to the rate at which Plaintiff’s counsel billed

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their time.

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Id.

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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2013).

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First, the Court

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

This

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;

Id. at

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

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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 December 5, 2017.
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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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Kerr v. Screen Extras Guild, Inc.,

longer relevant).
“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.”

Fox v.

Thus, the Court may consider its

Id.

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A.

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Plaintiff submits a “Billing Summary” and “Billing

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Statements,” itemizing the time spent by seven attorneys—Mark

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Potter, Phyl Grace, Dennis Price, Chris Carson, Isabel Masanque,

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Amanda Lockhart, and Teresa Allen—on this case.

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No. 34-4.

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California orders granting fees to these attorneys.

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7, ECF Nos. 34-5–34-9.

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Hours Reasonably Expended

Pl.’s Ex. 2, ECF

Plaintiff also attached six Central District of
Pl.’s Exs. 3–

Not all of the hours billed by Plaintiff’s counsel are

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reasonable.

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“estimates” for drafting the attorney fee motion (two hours) and

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traveling to attend this motion’s oral argument, which did not take

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place (eight hours).

Ten hours of Potter’s billing statement includes

Pl.’s Ex. 2 at 3.
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The Court does not find

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that billing for activities that did not transpire is reasonable.

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The eight hours billed for the cancelled attorney fee hearing will

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be omitted from the fee award.

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2:14-cv-1189-TLN-EFB, 2017 WL 3438737, at *2 (E.D. Cal. Aug. 10,

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2017) (striking hours billed for a hearing that was not held).

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See, e.g., Johnson v. Yates, No.

Additionally, as in other cases in which Potter represented

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Plaintiff, the Court will reduce Potter’s 2.2 hours of public

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records research by half to 1.1 hours.

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*2 (reducing 2.2 hours of public records research by half because

Yates, 2017 WL 3438737, at

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of its clerical nature); Johnson v. Xinliang Bai, No. 2:16-cv-1698-

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WBS-GGH, 2017 WL 3334006, at *2 (E.D. Cal. Aug. 4, 2017) (same);

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Johnson v. Guedoir, No. 2:14-cv-00930-TLN-AC, 2017 WL 3172994, at

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*3 (E.D. Cal. July 26, 2017) (same).

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Furthermore, Plaintiff has not explained why it was necessary

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for seven lawyers to work on this routine, non-complex ADA case.

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While the Ninth Circuit has found a litigation team involving

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multiple counsel is justified in “important class action

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litigation,” Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 785

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(9th Cir. 1986), the use of seven attorneys on the present case

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constitutes overstaffing.

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redundant, or otherwise unnecessary are to be excluded when

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calculating a reasonable attorneys’ fee.”).

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See id. (“Hours that are excessive,

In total, the Court reduces Potter’s billing statement by 9.1

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hours.

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overstaffing and omits the hours billed by Price, Carson, Lockhart,

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and Allen.

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///

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The Court also cuts hours attributable to unnecessary

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B.

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In his motion, Plaintiff requests his attorneys’ time be

Reasonable Hourly Rate

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compensated at the following rates: $350 per hour (Potter); $250

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per hour (Grace); and $200 per hour (Price, Carson, Masanque,

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Lockhart, Allen).

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Pl.’s Ex. 2 at 2–11.

Although Potter has served as the attorney for Plaintiff in

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more than 500 ADA cases in the Eastern District of California, for

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reasons beyond the Court’s comprehension, he has failed to attach a

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single relevant order on attorney fees from within this district.

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Intra-district decisions have found that $300 per hour is a

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reasonable rate for Potter.

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02786-JAM-EFB, 2017 WL 2813210, at *3 (E.D. Cal. June 29, 2017).

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Similarly, this district’s decisions have found that $250 per hour

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is an appropriate rate for Grace.

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that $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 any reason to depart

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from the rates awarded in other similar cases.

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Johnson v. Bach Thuoc Vu, No. 2:14-cv-

Id.

Finally, decisions provide

Id.

Accordingly, the Court calculates the lodestar with reasonable

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

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$150.

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The Lodestar in this case is as follows.

Attorney
Potter
Grace
Masanque

Hours
11.4
8.8
11.6

Rate
$300.00
$250.00
$150.00

Total
$3,420.00
$2,200.00
$1,740.00
$7,360.00

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C.

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The ADA authorizes an award of litigation expenses and costs

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Costs

to a prevailing party, including expert witness fees.
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Lovell v.

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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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A prevailing party

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

Here, Plaintiff seeks $3,450.98 in combined costs for

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investigation ($400), filing fee ($400), service costs ($40), and

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an expert to verify the claims that the property had been fully

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remediated ($2,610.98).

Mot. Fees at 14.

Although Defendants have

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not submitted objections to these costs, other decisions in this

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district have not found this lack of objection relieves Plaintiff

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of providing supporting documentation for requested costs.

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Yates, 2017 WL 3438737, at *3 (denying investigation and expert

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costs were no bills were provided).

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See

Plaintiff did not attach receipts or bills verifying that the

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amounts billed by his investigator and expert were reasonable and

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necessary.

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$1,540.50 in costs for the expert site inspection where a receipt

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was submitted for 7.9 hours at $195 per hour).

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declaration that he paid his investigator $400 to conduct this

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case’s investigation and did not receive a formal invoice.

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Dec., ECF No. 34-3, p. 2.

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why no billing statement was submitted for his expert’s

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verification of property remediation.

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upon which to judge whether these costs were reasonably incurred,

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the “Court will not award such an amount arbitrarily.”

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WL 3438737, at *3.

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///

See, e.g., Guedoir, 2017 WL 3172994, at *7 (granting

Potter provided a

Potter

Potter’s declaration does not explain

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As the Court has no basis

Yates, 2017

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The Court grants Plaintiff $440.00 in costs for the filing fee
and service cost.

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II.

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III.

ORDER

For the reasons set forth above, the Court GRANTS Plaintiff’s

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motion for attorneys’ fees and costs.

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$7,360.00 in attorney's fees and $440.00 in costs, for a total of

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$7,800.00.

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IT IS SO ORDERED.
Dated: December 8, 2017

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The Court awards Plaintiff