Johnson v. Bai

Filing 23

ORDER signed by Senior Judge William B. Shubb on 8/4/2017 GRANTING 20 Motion for Attorney Fees. Defendant is directed to pay plaintiff $6,630 inattorney's fees and $675 in costs. (Washington, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SCOTT JOHNSON, 13 Plaintiff, 14 v. CIV. NO. 2:16-1698 WBS GGH MEMORANDUM AND ORDER RE: MOTION FOR AN AWARD OF ATTORNEY’S FEES AND COSTS 15 XINLIANG BAI, 16 Defendant. 17 ----oo0oo---- 18 19 Plaintiff Scott Johnson is a quadriplegic who brought 20 this action based on barriers he encountered at the Trailhead 21 motel and lodge, which defendant Xinliang Bai owns and operates. 22 Plaintiff alleged violations of the Americans with Disabilities 23 Act (“ADA”) and the California Unruh Civil Rights Act. 24 parties settled the case and defendant agreed plaintiff was 25 entitled to reasonable attorney’s fees and costs, as to be 26 determined by the court. 27 28 The “The ADA authorizes a court to award attorneys’ fees, litigation expenses, and costs to a prevailing party.” 1 Lovell v. 1 Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002); see 42 U.S.C. § 2 12205. 3 prevailing party in a suit brought under the Unruh Act. 4 Civ. Code §§ 52(a), 55.55. 5 plaintiff was the prevailing party, but contends that plaintiff’s 6 counsel’s attorney’s fees are excessive.1 7 The court may also award attorney’s fees to the See Cal. Defendant does not dispute that The court calculates the reasonable amount of 8 attorney’s fees by following a two-step process. 9 court determines the lodestar calculation--“the number of hours First, the 10 reasonably expended on the litigation multiplied by a reasonable 11 hourly rate.” 12 Second, the court may adjust the lodestar figure “pursuant to a 13 variety of factors.” 14 1209 (9th Cir. 2013). 15 lodestar amount is reasonable. 16 F.3d 1115, 1119 n.4 (9th Cir. 2000). 17 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Gonzalez v. City of Maywood, 729 F.3d 1196, There is a strong presumption that the Fischer v. SJB-P.D. Inc., 214 In determining the size of an appropriate fee award, 18 the court need not “achieve auditing perfection.” 19 563 U.S. 826, 838 (2011). 20 into account [its] overall sense of a suit” to determine a 21 reasonable attorney’s fee. 22 I. Fox v. Vice, The court may use estimates and “take Id. Lodestar Computation 23 1 24 25 26 27 28 Defendant also claims that plaintiff’s counsel did not timely file for attorney’s fees because the parties agreed that a motion for attorney’s fees should be filed by June 19, 2017, and the court also stated in an order that June 19 was the filing deadline for any dispositional documents. (See Docket No. 15.) This deadline is nowhere in the settlement agreement, (see Pl.’s Mot. Ex. 3 (“Settlement Agreement”) (Docket No. 20-4)), and the court does not view a motion for attorney’s fees as a dispositional document subject to its June 19, 2017 deadline. 2 1 A. Reasonable Number of Hours 2 “The prevailing party has the burden of submitting 3 billing records to establish that the number of hours it has 4 requested are reasonable.” 5 court may reduce the hours “where the documentation is 6 inadequate; if the case was overstaffed and the hours are 7 duplicated; [or] if the hours expended are deemed excessive or 8 otherwise unnecessary.” 9 F.2d 1205, 1210 (9th Cir. 1986). 10 Gonzalez, 729 F.3d at 1202. The Chalmers v. City of Los Angeles, 796 Plaintiff submitted a billing summary itemizing the 11 time spent by attorneys Mark Potter, Phyl Grace, Dennis Price, 12 and Sara Gunderson on this case. 13 (“Pl.’s Mot.”) Ex. 2 (“Billing Summary”) (Docket No. 20-3).) 14 Plaintiff requests a total of $10,550 in attorney’s fees for 35.6 15 hours of work. 16 billed 21.7 hours, Grace 3.5 hours, Price 9.8 hours, and 17 Gunderson 0.6 hours. 18 entries for Potter, Grace, and Price. (Id. at 1.) (Id.) (Pl.’s Mot. for Att’y’s Fees The billing summary shows Potter Defendant objects to numerous 19 1. 20 Defendant first objects to the 1.3 hours Potter billed Billings by Potter 21 on March 2, 2016, to visit the Trailhead motel site, conduct an 22 assessment of the allegations, and email the investigator about 23 the photos and measurements he wanted because Potter later paid 24 an investigator to visit the site and take the measurements. 25 court does not find it unreasonable for Potter to visit the site 26 in order to determine where there may be ADA violations in order 27 to guide the investigator’s subsequent inspection and 28 measurements. The The court thus finds that billing 1.3 hours for 3 1 conducting an assessment of the allegations, visiting the site, 2 and emailing the investigator is reasonable. 3 Defendant next objects to the 2.2 hours Potter billed 4 for public records research on April 12, 2016, because that is a 5 clerical task that is not billable as attorney’s fees. 6 v. City & County of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 7 1992) (“It simply is not reasonable for a lawyer to bill, at her 8 regular hourly rate, for tasks that a non-attorney employed by 9 her could perform at a much lower cost.”), opinion vacated in See Davis 10 part on denial of reh’g, 984 F.2d 345 (9th Cir. 1993). 11 has previously addressed this precise task by plaintiff’s counsel 12 in two of its prior decisions, and reduced the hours in each to 13 1.0 hour. 14 WBS AC, 2014 WL 6634324, at *4 (E.D. Cal. Nov. 21, 2014) (2.1 15 hours for public records research reduced to 1.1 hour); Johnson 16 v. Allied Trailer Supply, Civ. No. 2:13-1544 WBS EFB, 2014 WL 17 1334006, at *2 (E.D. Cal. Apr. 3, 2014) (same). 18 not distinguish the record search performed in these two cases 19 from the search performed here and the court thus finds that a 20 1.1 hours reduction is merited. 21 The court See Johnson v. Wayside Prop., Inc., Civ. No. 2:13-1610 Plaintiff does Defendant objects to the 0.9 hour billed on July 20, 22 2016, to review the investigator’s report and discuss the report 23 with the investigator on the phone because Potter had already 24 visited the site. 25 investigator’s report and speaking with the investigator where 26 such information is crucial to the merits of plaintiff’s claims 27 is not unreasonable or excessive. 28 Spending less than one hour reviewing the Defendant objects to the 1.0 hour billed to draft the 4 1 Complaint on July 20, 2016, because it is largely boilerplate and 2 identical to those filed by plaintiff’s counsel in similar cases. 3 In a similar case, the court determined that 0.8 hour to draft a 4 boilerplate Complaint by the same plaintiff’s counsel was 5 reasonable. 6 is no reason for the court to believe that 1.0 hour for drafting 7 a similar Complaint here was excessive. 8 9 See Allied Trailer, 2014 WL 1334006, at *2. There Defendant next moves to reduce Potter’s December 8, 2016, entry of 0.6 hour that states: “Discussion with client re: 10 case update; dates for settlement conference” because it is a 11 clerical function. 12 settlement conference may be clerical in nature, discussing other 13 case updates are not necessarily clerical. 14 reduce this entry by 0.1 hour to account for the discussion about 15 the dates of the settlement conference. 16 While informing the client of the dates of a The court thus will Defendant next objects to Potter’s billing of 0.3 hour 17 on January 23, 2017, for the following tasks: “reviewed email 18 history re: setting dates for conference; drafted notice of 19 settlement conference along with proposed order thereto.” 20 (Billing Summary at 2.) 21 arguably a clerical task; see Wayside Property, 2014 WL 6634324, 22 at *3 (reducing attorney’s fees for drafting a notice of a motion 23 for summary judgment because it was clerical); however, the court 24 does not find that 0.3 hour to review email and draft the notice 25 and proposed order is unreasonable. 26 Drafting a notice of settlement is Defendant also objects to an April 19, 2017, entry of 27 0.2 hour by Potter to draft a CCDA report because it is a 28 clerical function. There is insufficient evidence indicating 5 1 that this report is clerical in nature or that 0.2 hour is 2 excessive. The court thus will not reduce this entry. 3 Defendant next objects to Potter’s billing of 2.0 hours 4 on June 26, 2017, to draft plaintiff’s Motion for attorney’s fees 5 and costs because it is a boilerplate motion. 6 is similar to motions for attorney’s fees filed in unrelated 7 cases, e.g., Johnson v. Patel, Civ. No. 2:14-2078 WBS AC, the 8 motions are not identical. 9 draft the Motion for attorney’s fees and costs is not excessive 10 While this motion The court finds that 2.0 hours to or unreasonable, and a reduction is not merited. 11 Plaintiff estimated that Potter would bill 7.0 hours to 12 review the opposition brief, draft the reply brief, and attend 13 oral argument. 14 plaintiff’s counsel indicated that the Reply brief took 2.4 hours 15 to draft. 16 opposition and draft the Reply is reasonable. 17 (Billing Summary at 3.) In the Reply, The court finds that 2.4 hours to read plaintiff’s A recurring theme in defendant’s opposition is that 18 plaintiff’s counsel billed more hours than necessary. 19 is aware of defendant’s desire to reduce the amount of attorney’s 20 fees owed. 21 of attorney’s fees, the court issues this Order without oral 22 argument. 23 incurred for attending oral argument. 24 took 2.4 hours to draft and the court issues this Order without 25 oral argument, the court will reduce this estimated entry of 7.0 26 hours by 4.6 hours. The court In light of defendant’s desire to reduce the amount Defendant thus will not need to pay for Potter’s fees Because the Reply brief 27 2. 28 Defendant first objects to the 1.3 hours billed by Billings by Grace 6 1 Grace on October 25, 2016, to prepare for and conduct the Rule 26 2 conference and send notes to the discovery team. 3 Summary at 4.) 4 the conference took less than five minutes and plaintiff’s 5 counsel used their boilerplate Joint Status Report form. 6 Vaughn Decl. ¶ 7 (Docket No. 21-1).) 7 brevity of the conference and the use of a boilerplate Joint 8 Status Report does not justify billing 1.3 hours. 9 reduce this entry by 0.5 hour. 10 (Billing Defendant argues the time is excessive because (See The court agrees that the The court will Defendant objects to 0.3 hour billed on May 3, 2017, as 11 duplicative of the April 20, 2017, entry. 12 a review and approval of the notice of settlement that the 13 parties later filed with the court. 14 (Docket No. 14); Billing Statement at 4.) 15 review and finalization of the settlement agreement signed by the 16 parties. 17 The entries are not duplicative, and the court will not reduce 18 this entry. The April 20 entry was (See Notice of Settlement The May 3 entry was a (See Billing Statement at 4; Settlement Agreement.) 19 3. 20 Defendant objects to the 2.0 hours billed by Price on Billings by Price 21 April 17, 2017, to prepare for the mediation conference and 22 discuss the mediation with the client and the 7.0 hours billed by 23 Price on April 18, 2017, to travel to and appear at the mediation 24 conference. 25 2.0 hours to prepare for the mediation conference and discuss 26 such with plaintiff is clearly excessive. 27 hours to prepare and attend a mediation that lasted approximately 28 1.5 hours is excessive. The court does not find that the April 17 entry of Defendant argues 9.0 Plaintiff argues the mediation lasted 7 1 3.0 hours, but plaintiff provides no documentation that the 2 mediation lasted 3.0 hours or that the remaining 4.0 hours on 3 April 18 was a necessary and reasonable travel time. 4 will thus reduce Price’s April 18, 2017, entry by 3.0 hours. 5 Chalmers, 796 F.2d at 1210 (9th Cir. 1986) (holding a court may 6 reduce hours “where the documentation is inadequate”). The court See 7 Having made the above reductions, the court finds that 8 Potter reasonably expended 15.9 hours, Grace reasonably expended 9 3.0 hours, Price reasonably expended 6.8 hours, and Gunderson 10 11 12 reasonably expended 0.6 hour. B. Reasonable Hourly Rate The reasonable hourly rate is determined according to 13 “the prevailing market rates in the relevant community,” Blum v. 14 Stenson, 465 U.S. 866, 895 (1984), “for similar work performed by 15 attorneys of comparable skill, experience, and reputation,” 16 Chalmers, 796 F.2d at 1210-11. 17 the forum in which the district court sits,” Prison Legal News v. 18 Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010), which here is 19 the Sacramento Division of the Eastern District of California. 20 The relevant legal community “is The prevailing party has the burden of producing 21 sufficient evidence that its “requested rates are in line with 22 those prevailing in the community for similar services by lawyers 23 of reasonably comparable skill, experience and reputation.” 24 Blum, 465 U.S. at 895 n.11. 25 civil rights attorneys is to be calculated by considering certain 26 factors, including the novelty and difficulty of the issues, the 27 skill required to try the case, whether or not the fee is 28 contingent, the experience held by counsel and fee awards in “The hourly rate for successful 8 1 similar cases.” 2 1114 (9th Cir. 2008). 3 subset of civil rights practice, the reasonable hourly rate 4 merited in routine disability access cases typically falls below 5 the hourly rate charged in more complicated civil rights cases.” 6 Johnson v. Patel, Civ. No. 2:14-2078 WBS AC, 2016 WL 727111, at 7 *3 (E.D. Cal. Feb. 23, 2016). 8 9 Moreno v. City of Sacramento, 534 F.3d 1106, “While disability access cases are a Here, plaintiff’s counsel seeks an hourly rate of $350 for Potter, $250 for Grace, and $200 each for junior associates 10 Price and Gunderson. 11 attorneys practice at the Center for Disability Access (“CDA”). 12 Potter is the founder and managing partner of CDA with almost 13 twenty years of experience in disability cases, Grace has nearly 14 twenty years of experience and eleven in disability access 15 litigation, and Price and Gunderson are junior associates. 16 (Potter Decl. ¶¶ 8-10 (Docket No. 20-2).) 17 concedes that this case involves a straight-forward application 18 of the law and did not present novel or difficult issues 19 requiring a high level of skill or specialization. 20 at 12.) 21 (See Billing Statement.) All of the Plaintiff’s counsel (Pl.’s Mem. The court has examined the experience of Potter, Grace, 22 and Price in previous disability access cases brought by 23 plaintiff and found that hourly rates of $300 for Potter, $250 24 for Grace, and $150 for Price and other junior attorneys were 25 reasonable. 26 KJN, 2016 WL 3448247, at *2-3 (E.D. Cal. June 23, 2016); see also 27 Johnson v. Kamboj LLC, Civ. No. 2:14-00561 MCE AC, 2016 WL 28 1043719, at *3 (E.D. Cal. Mar. 16, 2016) (granting Grace an See, e.g., Johnson v. Gross, Civ. No. 2:14-2242 WBS 9 1 hourly rate of $250 in a similar ADA case). 2 does not cite any new cases finding that the reasonably hourly 3 rate in Sacramento in a routine disability access case exceeds 4 these rates.2 5 orders, the court finds that the reasonable rates are $300 for 6 Potter, $250 for Grace, and $150 for Price and Gunderson. 7 8 Plaintiff’s counsel For the reasons expressed in the court’s prior Accordingly, the lodestar in this case is $6,630, calculated as follows: 9 Potter: 15.9 x $300 = $4,770 10 Grace: 3.0 x $250 = $ 11 Price: 6.8 x $150 = $1,020 12 Gunderson: 0.6 x $150 = $ 13 750 90 $6,630 14 Because neither party seeks a multiplier or reduction 15 to the lodestar and there is a “strong presumption that the 16 lodestar amount is reasonable,” Fischer, 214 F.3d at 119 n.4, the 17 court finds that no further adjustment to the lodestar is 18 warranted. 19 II. Costs 20 Under the ADA, a court may award litigation expenses 21 and costs. 22 Plaintiff seeks $675 in costs. 23 of $200, a $400 filing fee, and service costs of $75. Lovell, 303 F.3d at 1058; 42 U.S.C. § 12205. This includes investigation costs (Pl.’s 24 2 25 26 27 28 Plaintiff’s counsel includes the declaration of John O’Connor, an attorney’s fees expert, from their Motion for attorney’s fees in Wayside Property to support its requested attorney’s fees here. The court rejected the O’Connor declaration’s methodology in Wayside Property because the relevant legal market is Sacramento, not Northern California, and it does not discuss the rates in routine disability access cases. See Wayside Prop., 2014 WL 6634324, at *7-8. 10 1 Mot. at 13; Billing Summary at 1.) 2 these costs and the court will therefore award them to plaintiff. 3 Defendant does not object to IT IS THEREFORE ORDERED that plaintiff’s Motion for 4 attorney’s fees and costs (Docket No. 20) be, and the same hereby 5 is, GRANTED. 6 attorney’s fees and $675 in costs. 7 Dated: Defendant is directed to pay plaintiff $6,630 in August 4, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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