Levine et al v. Sleep Train, Inc. et al

Filing 102

ORDER signed by Senior Judge William B. Shubb on 08/16/16 ORDERING that plaintiff's 96 Motion for Attorney Fees is GRANTED in part; Coastal Breeze is directed to pay plaintiffs $7,926 in attorney's fees and $267.66 in costs. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEVINE and VERONICA
GUZMAN,

CIV. NO. 2:15-00002 WBS AC
MEMORANDUM AND ORDER RE: MOTION
FOR ATTORNEY’S FEES AND COSTS

Plaintiffs,

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v.
THE SLEEP TRAIN, INC.; LIVE
NATION ENTERTAINMENT, INC.;
COASTAL BREEZE LIMOUSINE,
LLC; BGE YUBA, LLC; and DOES
1-20, inclusive,
Defendants.

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Plaintiff Robert Levine, who is disabled, and his

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fiancée, plaintiff Veronica Guzman, brought this action under the

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American with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101

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et seq., and California’s Unruh Civil Rights Act (“UCRA”), Cal.

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Civ. Code §§ 51-53, based on barriers encountered at the Sleep

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Train Amphitheatre.

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(“Coastal Breeze”) allegedly instigated the towing of plaintiffs’

Defendant Coastal Breeze Limousine, LLC

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car from designated disabled parking at the concert venue.

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Coastal Breeze failed to make an appearance in this case and, on

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June 21, 2016, this court adopted the magistrate judge’s findings

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and recommendations awarding plaintiffs default judgment against

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Coastal Breeze, enjoining Coastal Breeze from interfering with

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plaintiffs’ right to use the overflow parking lot, and awarding

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Levine $4,000 in statutory damages and Guzman $1,000 in statutory

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damages.

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plaintiffs’ motion for attorney’s fees and costs.

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(Docket No. 90.)

Presently before the court is
(Docket No.

96.)

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Coastal Breeze was not served with plaintiffs’ motion

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for attorney’s fees because under Local Rule 135(d) “no service

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need be made upon parties held in default for failure to appear

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unless the document involved asserts new or additional claims for

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relief against such defaulting parties.”

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see also Fed. R. Civ. P. 5 (“No service is required on a party

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who is in default for failing to appear.

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asserts a new claim for relief against such a party must be

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served on that party under Rule 4.”).

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attorney’s fees is not a new or additional claim for relief

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because plaintiffs requested reasonable attorney’s fees in their

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Complaint, (See Compl. ¶¶ 2, 21, 25, 32 (Docket No. 1)), which

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was properly served on Coastal Breeze, (Docket Nos. 2, 9).

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Annunciation v. W. Capital Fin. Servs. Corp., 97 F.3d 1458 (9th

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Cir. 1996) (affirming the district court’s decision to enter

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default judgment against defendant and award attorney’s fees

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where defendant was served with a summons and copy of the

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complaint, which requested “reasonable attorney’s fees”).
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E.D. Cal. L.R. 135(d);

But a pleading that

This request for

See

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Coastal Breeze therefore did not file an opposition or statement

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of non-opposition.

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vacated and the court takes plaintiffs’ motion under submission

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without oral argument.

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The hearing date of August 22, 2017 is

“The ADA authorizes a court to award attorneys’ fees,

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litigation expenses, and costs to a prevailing party.”

Lovell v.

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Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002); see also 42 U.S.C.

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§ 12205.

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prevailing party under UCRA.

The court may also award attorney’s fees to the
Cal. Civ. Code §§ 52(a), 55.

A

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plaintiff prevails “when actual relief on the merits of his claim

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materially alters the legal relationship between the parties by

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modifying the defendant’s behavior in a way that directly

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benefits the plaintiff.”

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(1992).

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[when] the plaintiff becomes entitled to enforce a judgment,

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consent decree, or settlement against the defendant.’”

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v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) (quoting

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Farrar, 506 U.S. at 113).

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Farrar v. Hobby, 506 U.S. 103, 111-12

A “‘material alteration of the legal relationship occurs

Fischer

Here, plaintiffs are the prevailing party as the court

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entered default judgment against Coastal Breeze, enjoined Coastal

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Breeze from future interference, and ordered Coastal Breeze to

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pay statutory damages.

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parties was altered because “the plaintiff[s] can force the

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defendant to do something [it] otherwise would not have to do.”

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Id.

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The legal relationship between the two

The court calculates a reasonable amount of attorney’s

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fees by following a two-step process.

First, the court

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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); see also Kerr v. Screen Guild Extras, Inc.,

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526 F.2d 67, 70 (9th Cir. 1975) (enumerating factors on which

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courts may rely in adjusting the lodestar figure).

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strong presumption, however, that the lodestar amount is

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reasonable.

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

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

There is a

Fischer, 214 F.3d at 1119 n.4.

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

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“essential goal of shifting fees . . . is to do rough justice,”

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the court may “use estimates” or “take into account [its] overall

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sense of a suit” to determine a reasonable attorney’s fee.

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A.

Fox

Rather, because the

Id.

Lodestar Calculation

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1.

Hours Reasonably Expended

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Plaintiffs seek $13,275 in fees for a total of 23.10

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attorney hours and 25.60 paralegal hours of work on tasks related

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to Coastal Breeze and the present motion.

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Att’y’s Fees (“Pls.’ Mot.”) at 1, 9 (Docket No. 96).)

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Celia McGuinness and paralegals Aaron Clefton and Emily O’Donohoe

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each submitted declarations and billing records itemizing the

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time spent on matters related to Coastal Breeze in this case.

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(McGuinness Decl. Ex. 1 (Docket No. 97); Clefton Decl. Ex. 3

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(Docket No. 98); O’Donohoe Decl. Ex. 3. (Docket No. 99).)

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billing records show McGuinness billed 23.10 hours, Clefton 6.70
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(Pls.’ Mot. for
Attorney

The

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hours, and O’Donohoe 18.90 hours.

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the hours expended are reasonable.

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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

(Id.)

The court finds that

To determine the reasonableness of the hourly

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skill, experience, and reputation,” Chalmers v. City of Los

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Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 1986).

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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.

In general,

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

The

Blum,

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Plaintiffs seek hourly rates of $400 for attorney

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McGuinness, $165 for senior paralegal Clefton, and $155 for

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paralegal O’Donohoe.

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lead associate attorney at the Law Offices of Paul L. Rein and

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has been a trial lawyer for twenty-five years.

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¶¶ 1, 3.)

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for the past eight years and has tried more than twenty-five

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cases in federal and state court.

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paralegal Clefton has eleven years of experience in paralegal

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work for cases involving plaintiffs with disabilities and is
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(Pls.’ Mot. at 7-8.)

McGuinness is the

(McGuinness Decl.

She has practiced disability rights law exclusively

(Id. ¶¶ 3, 6.)

Senior

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currently a third-year law student at John F. Kennedy University

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College of Law.

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graduated from law school in 2008 and has been a paralegal at the

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Law Offices of Paul L. Rein since March 2014.

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¶¶ 2-3.)

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(Clefton Decl. ¶¶ 2, 4.)

Paralegal O’Donohoe

(O’Donohoe Decl.

In several recent cases this court has found hourly

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rates of $300 for partners, between $175 and $260 for senior

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associates with significant experience, and $150 for junior

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associates to be reasonable for disability access cases in the

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Sacramento legal community.

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Inc., Civ. No. 2:13-1610 WBS AC, 2014 WL 6634324, at *8 (E.D.

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Cal. Nov. 21, 2014), appeal voluntarily dismissed, No. 14-17479

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(9th Cir. Apr. 27, 2015); Johnson v. Allied Trailer Supply, Civ.

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No. 2:13-1544 WBS EFB, 2014 WL 1334006, at *6 (E.D. Cal. Apr. 3,

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2014); Johnson v. Gross, Civ. No. 2:14-02242 WBS KJN, 2016 WL

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3448247, at *2-3 (E.D. Cal. June 23, 2016).

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discussed in more detail in the orders in those cases, the court

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finds that an hourly rate of $260 is appropriate for lead

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associate McGuinness, based on her twenty-five years as an

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attorney and eight practicing disability rights law.

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See, e.g., Johnson v. Wayside Prop.,

For the reasons

With regard to paralegals, this court has previously

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found hourly rates of $75 to be reasonable in this market.

See,

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e.g., Deocampo v. Potts, Civ. No. 2:06-1283 WBS CMK, 2014 WL

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788429, at *9 (E.D. Cal. Feb. 25, 2014) (“[C]ourts in this

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district have generally found that $75 is an appropriate hourly

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rate for paralegals.”); Joe Hand Promotions, Inc. v. Albright,

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Civ. No. 2:11-2260 WBS CMK, 2013 WL 4094403, at *3 (E.D. Cal.

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Aug. 13, 2013) (finding the paralegal hourly rate of $75 to be
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reasonable, rather than the requested rate of $150, in a case for

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unauthorized public exhibition of a televised sporting event);

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McCarthy v. Reynolds, Civ. No. 2:09-2495 WBS DAD, 2011 WL

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4344147, at *1 (E.D. Cal. Sept. 14, 2011) (finding the law

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clerk’s hourly rate of $75 to be reasonable in a Title VII sexual

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harassment and retaliation case); Lowe v. Unum Life Ins. Co. of

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Am., Civ. No. S-05-00368 WBS GGH, 2007 WL 4374020, at *6-7 (E.D.

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Cal. Dec. 14, 2007) (awarding the paralegal $75 per hour for work

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in an ERISA case).

The court will therefore apply an hourly rate

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of $75 for the time expended by paralegals Clefton and O’Donohoe

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in this case.

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Accordingly the lodestar in this case is $7,926,
calculated as follows:

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McGuinness:

23.1

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Clefton:

6.7

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O’Donohoe:

18.9

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x
x

$260

=

$6,006.00

$75
X

=

$502.50

$75

=

$1,417.50
$7,926.00

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Because plaintiffs do not seek a multiplier or

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reduction to the lodestar and there is a “strong presumption that

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the lodestar amount is reasonable,” Fischer, 214 F.3d at 1119

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n.4, the court finds that no further adjustment to the lodestar

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is warranted.

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B. Costs

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Under the ADA, a court may award litigation expenses

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and costs.

Lovell, 303 F.3d at 1058; 42 U.S.C. § 12205.

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Plaintiffs seek $267.66 in litigation costs and expenses

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attributable to obtaining a default judgment against Coastal

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Breeze.

(Pls.’ Mot. at 10.)

This includes service costs of
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$248.50 and shipping costs of $19.16, as verified by the

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submitted copies of the original receipts.

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2.)

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$267.66 in expenses and costs.

(McGuinness Decl. Ex.

Based on these records, the court will award plaintiffs

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IT IS THEREFORE ORDERED that plaintiffs’ motion for

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attorney’s fees (Docket No. 96) be, and the same hereby is,

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GRANTED in part.

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$7,926 in attorney’s fees and $267.66 in costs.

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Dated:

Coastal Breeze is directed to pay plaintiffs

August 16, 2016

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