Johnson v. Saleh et al.

Filing 37

ORDER signed by District Judge John A. Mendez on 3/2/18, GRANTING Plaintiff's 33 motion for attorneys' fees and costs. Plaintiff is AWARDED $3,855.00 in attorney's fees and $4,142.50 in costs, for a total of $7,997.50. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 2:16-cv-00617-JAM-KJN

SCOTT JOHNSON,

ORDER GRANTING PLAINTIFF’S MOTION
FOR ATTORNEYS’ FEES

v.
SAIF ALI AHMED SALEH;
MICHAEL’S MARKET, INC., a
California Corporation,

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Defendants.

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Plaintiff Scott Johnson (“Plaintiff”) sued Defendants John

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Saif Ali Ahmed Saleh and Michael’s Market, Inc. (“Defendants”),

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alleging that Michael’s Market did not comply with state and

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federal disability access laws.

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granted summary judgment on Plaintiff’s claims arising under the

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Americans with Disabilities (ADA) and Unruh Civil Rights Act.

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Order, ECF No. 28.

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U.S.C. § 12205 and Cal. Civ. Code § 52(a). 1

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33.

Compl., ECF No. 1.

The Court

Plaintiff now seeks attorney’s fees under 42
Mot. Fees, ECF No.

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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 February 13, 2018.
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I.

OPINION

Plaintiff believes that the Court should award him

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“reasonable attorney fees” and litigation expenses in the amount

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of $19,088.00.

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opposition to Plaintiff’s first motion for attorney fees. The

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first motion was stricken because Plaintiff failed to comply with

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the Court’s order regarding filing requirements.

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No. 31; Minute Order, ECF No. 32. Plaintiff refiled the motion

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and also submitted a reply to Defendants’ opposition, in

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Mot. Fee at 1.

Defendants’ counsel filed an

compliance with the Court’s order.

See Opp’n, ECF

Reply, ECF No. 36.

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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Court determines the amount of a reasonable fee by multiplying

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the number of hours reasonably expended on the litigation by a

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reasonable hourly rate.

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(1983).

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presumptively reasonable fee.

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F.3d 1196, 1202 (9th Cir. 2013).

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First, the

Hensley v. Eckerhart, 461 U.S. 424, 433

This total, the “lodestar” amount, yields a
Gonzalez v. City of Maywood, 729

Second, the Court decides whether to adjust the lodestar

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figure upward or downward pursuant to a variety of factors.

Id.

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at 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

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

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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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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).

Fox v.

Thus, the Court may consider its

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

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and allocating an attorney’s time.”

Id.

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A.

Hours Reasonably Expended

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Plaintiff submits a “Billing Summary” and “Billing

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

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Potter, Phyl Grace, Mary Melton, Isabel Masanque, Sara Gunderson,

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Dennis Price, Teresa Allen, and Amanda Lockhart—on this case.

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Pl.’s Ex. 2, ECF No. 33-3.

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for attendance at a June 2, 2017 deposition cancelled by

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Plaintiff’s counsel, ECF No. 33-4; two invoices for site surveys

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and mileage, ECF No. 33-5, 33-6; a declaration from an attorney

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in support of Plaintiff’s attorneys’ rates, ECF No. 33-7; and an

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attorney rate report, ECF No. 33-8.

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1.

Plaintiff also attached an invoice

Potter

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

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reasonable.

Potter’s billing statement includes “estimates” for

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“time to review opposition brief, draft the reply brief, attend

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oral argument” (7 hours).

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matter, these activities should be broken into separate time

Pl.’s Ex. 2 at 3.

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As an initial

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entries.

Additionally, no oral argument took place on this

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motion.

Plaintiff concedes that the time estimated for oral

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argument should be stricken.

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Potter did not draft the reply, he cannot bill for it.

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the Court will credit thirty minutes of time, a reasonable

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estimate for the quality of the reply brief, to Masanque.

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the seven hours Potter billed for the cancelled attorney fee

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hearing will be omitted from the fee award.

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v. Yates, No. 2:14-cv-1189-TLN-EFB, 2017 WL 3438737, at *2 (E.D.

Reply at 4.

Furthermore, because
Instead,

Thus,

See, e.g., Johnson

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Cal. Aug. 10, 2017) (striking hours billed for a hearing that was

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not held).

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Potter also bills 0.9 hours for “[d]iscussions with client;

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discussed his case; discussed his contacts with the geographical

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area for standing purposes and his likelihood of returning to

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maintain federal jurisdiction.”

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cases filed by Plaintiff and his counsel in the Eastern District

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of California, a discussion about standing could not reasonably

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have required this much time.

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hours.

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Id. at 2.

Given the hundreds of

This entry is reduced to 0.2

As in other cases in which Potter represented Plaintiff, the

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Court will reduce Potter’s 2.2 hours of public records research

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by half to 1.1 hours.

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DB, 2017 WL 3438735, at *3 (E.D. Cal. Aug. 10, 2017) (“[C]ourts

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have found public records research to be clerical in nature and

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suited for paralegal work.”); Yates, 2017 WL 3438737, at *2

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

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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);

Johnson v. Swanson, No. 2:15-CV-00215-TLN-

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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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In total, the Court reduces the hours billed by Potter

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(16.2) by 9.5 hours for excessive or unreasonable entries.

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Potter’s remaining total is 6.7 hours.

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2.

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Melton

Plaintiff has further conceded that fees and costs billed

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for a deposition cancelled by his attorney were not reasonable.

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Reply at 4.

The Court will strike Melton’s time entries

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associated with this deposition on May 15 and 16, 2017, omitting

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five hours from her billing statement. 2

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The Court reduces the hours billed by Melton (6.1) by 5.3

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hours for excessive or unreasonable entries.

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total is 0.8 hours.

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3.

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Melton’s remaining

Gunderson

Plaintiff failed to provide any information in his brief

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about Gunderson.

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her qualifications or experience, essential elements to

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determining a reasonable attorney fee.

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hours will be omitted from the award. 3

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4.

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The Court has no means by which to determine

All of Gunderson’s 15.7

Other Attorneys

Plaintiff has not explained why it was necessary for eight

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attorneys to work on this case.

The Court has reviewed the

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filings on the docket and finds that this case was a simple

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The Court will also strike Plaintiff’s request for costs in the
amount of $200 for this deposition.
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Further review of Gunderson’s time entries shows overbilling.
For example, Gunderson billed in unreasonable increments for time
spent leaving voicemails and instructing assistants.
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matter in which the bulk of legal material was recycled from

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Plaintiff’s past cases.

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litigation team involving multiple counsel is justified in

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

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

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attorneys on the present case constitutes overstaffing.

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(“Hours that are excessive, redundant, or otherwise unnecessary

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are to be excluded when calculating a reasonable attorneys’

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fee.”).

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While the Ninth Circuit has found a

See id.

The Court will not award fees for hours billed by

attorneys other than Potter, Melton, and Masanque.
The Court reduces the hours billed by Masanque (15.1) by 4.1

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hours for excessive or unreasonable entries.

The Court grants

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Masanque 0.5 hours of time for the reply brief submitted pursuant

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to the Court’s order.

Masanque’s remaining total is 11.5 hours.

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B.

Reasonable Hourly Rate

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In his motion, Plaintiff requests his attorneys’ time be

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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 (Melton, Masanque, Gunderson,

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Price, Allen, Lockhart).

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Ex. 2 at 2–12.

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Potter Dec., ECF No. 33-2, p. 3; Pl.’s

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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provide that $150 per hour is a reasonable rate for junior

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associates in disability access cases in the Sacramento legal

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community.

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reason to depart from the rates awarded in other similar cases.

Id.

Similarly, decisions

Plaintiff has not presented the Court with a

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Accordingly, the Court calculates the lodestar with

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reasonable hourly rates as: Potter at $300 and other attorneys at

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$150.

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failure to provide any information about her qualifications and

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experience in the briefing.

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follows.

As stated above, Gunderson’s hours were stricken for

The lodestar in this case is as

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Attorney
Hours
Rate
Potter
6.7
$300.00
Melton
0.8
$150.00
Masanque
11.5
$150.00
Reasonable Attorney Fees Earned

Total
$2,010.00
$ 120.00
$1,725.00
$3,855.00

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C.

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The ADA authorizes an award of litigation expenses and costs

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

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fee-paying clients.

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2005).

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

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Lovell v.

A prevailing

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

The requested costs must be reasonable in amount.

Harris

Here, Plaintiff seeks litigation expenses in the amount of

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$4,838.00.

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($400.00), filing fees ($400.00), service fees ($95.50),

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deposition fees ($200.00), and expert fees ($3,742.50).

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Plaintiff bears the burden of providing supporting documentation

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for requested costs.

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investigation and expert costs were no bills were provided).

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Those fees are composed of investigator fees

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

Plaintiff did not attach receipts or bills verifying that
the amounts billed for service and by his investigator were
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reasonable and necessary.

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paid his investigator $400 to conduct this case’s investigation.

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Potter Dec., ECF No. 33-2, p. 2.

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explain why no billing statement was submitted for his

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investigator and does not mention the service fee.

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has no basis upon which to judge whether these costs were

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reasonably incurred, the “Court will not award such an amount

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arbitrarily.”

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noted above, Plaintiff shall not receive deposition fees for a

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Potter’s declaration does not

Yates, 2017 WL 3438737, at *3.

As the Court

Additionally, as

deposition cancelled by his own attorney.

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Potter provided a declaration that he

The Court grants Plaintiff $4,142.50 in filing and expert
fees.

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II.

ORDER

For the reasons set forth above, the Court GRANTS

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Plaintiff’s motion for attorneys’ fees and costs.

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awards Plaintiff $3,855.00 in attorney’s fees and $4,142.50 in

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costs, for a total of $7,997.50.

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IT IS SO ORDERED.
Dated:

March 2, 2018

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The Court