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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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.

CIV. NO. 2:16-1698 WBS GGH
MEMORANDUM AND ORDER RE: MOTION
FOR AN AWARD OF ATTORNEY’S FEES
AND COSTS

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XINLIANG BAI,
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Defendant.
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Plaintiff Scott Johnson is a quadriplegic who brought

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this action based on barriers he encountered at the Trailhead

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motel and lodge, which defendant Xinliang Bai owns and operates.

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Plaintiff alleged violations of the Americans with Disabilities

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Act (“ADA”) and the California Unruh Civil Rights Act.

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parties settled the case and defendant agreed plaintiff was

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entitled to reasonable attorney’s fees and costs, as to be

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determined by the court.

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The

“The ADA authorizes a court to award attorneys’ fees,
litigation expenses, and costs to a prevailing party.”
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Lovell v.

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

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12205.

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prevailing party in a suit brought under the Unruh Act.

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Civ. Code §§ 52(a), 55.55.

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plaintiff was the prevailing party, but contends that plaintiff’s

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counsel’s attorney’s fees are excessive.1

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The court may also award attorney’s fees to the
See Cal.

Defendant does not dispute that

The court calculates the reasonable amount of

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attorney’s fees by following a two-step process.

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court determines the lodestar calculation--“the number of hours

First, the

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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).

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lodestar amount is reasonable.

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F.3d 1115, 1119 n.4 (9th Cir. 2000).

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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,

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the court need not “achieve auditing perfection.”

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

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into account [its] overall sense of a suit” to determine a

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reasonable attorney’s fee.

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I.

Fox v. Vice,

The court may use estimates and “take

Id.

Lodestar Computation

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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.
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A.

Reasonable Number of Hours

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“The prevailing party has the burden of submitting

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billing records to establish that the number of hours it has

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requested are reasonable.”

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court may reduce the hours “where the documentation is

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inadequate; if the case was overstaffed and the hours are

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duplicated; [or] if the hours expended are deemed excessive or

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otherwise unnecessary.”

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F.2d 1205, 1210 (9th Cir. 1986).

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Gonzalez, 729 F.3d at 1202.

The

Chalmers v. City of Los Angeles, 796

Plaintiff submitted a billing summary itemizing the

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time spent by attorneys Mark Potter, Phyl Grace, Dennis Price,

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and Sara Gunderson on this case.

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(“Pl.’s Mot.”) Ex. 2 (“Billing Summary”) (Docket No. 20-3).)

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Plaintiff requests a total of $10,550 in attorney’s fees for 35.6

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hours of work.

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billed 21.7 hours, Grace 3.5 hours, Price 9.8 hours, and

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Gunderson 0.6 hours.

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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

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1.

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Defendant first objects to the 1.3 hours Potter billed

Billings by Potter

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on March 2, 2016, to visit the Trailhead motel site, conduct an

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assessment of the allegations, and email the investigator about

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the photos and measurements he wanted because Potter later paid

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an investigator to visit the site and take the measurements.

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court does not find it unreasonable for Potter to visit the site

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in order to determine where there may be ADA violations in order

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to guide the investigator’s subsequent inspection and

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measurements.

The

The court thus finds that billing 1.3 hours for
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conducting an assessment of the allegations, visiting the site,

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and emailing the investigator is reasonable.

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Defendant next objects to the 2.2 hours Potter billed

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for public records research on April 12, 2016, because that is a

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clerical task that is not billable as attorney’s fees.

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v. City & County of San Francisco, 976 F.2d 1536, 1543 (9th Cir.

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1992) (“It simply is not reasonable for a lawyer to bill, at her

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regular hourly rate, for tasks that a non-attorney employed by

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her could perform at a much lower cost.”), opinion vacated in

See Davis

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part on denial of reh’g, 984 F.2d 345 (9th Cir. 1993).

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has previously addressed this precise task by plaintiff’s counsel

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in two of its prior decisions, and reduced the hours in each to

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1.0 hour.

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WBS AC, 2014 WL 6634324, at *4 (E.D. Cal. Nov. 21, 2014) (2.1

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hours for public records research reduced to 1.1 hour); Johnson

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v. Allied Trailer Supply, Civ. No. 2:13-1544 WBS EFB, 2014 WL

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1334006, at *2 (E.D. Cal. Apr. 3, 2014) (same).

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not distinguish the record search performed in these two cases

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from the search performed here and the court thus finds that a

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1.1 hours reduction is merited.

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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,

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2016, to review the investigator’s report and discuss the report

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with the investigator on the phone because Potter had already

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visited the site.

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investigator’s report and speaking with the investigator where

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such information is crucial to the merits of plaintiff’s claims

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is not unreasonable or excessive.

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Spending less than one hour reviewing the

Defendant objects to the 1.0 hour billed to draft the
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Complaint on July 20, 2016, because it is largely boilerplate and

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identical to those filed by plaintiff’s counsel in similar cases.

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In a similar case, the court determined that 0.8 hour to draft a

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boilerplate Complaint by the same plaintiff’s counsel was

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reasonable.

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is no reason for the court to believe that 1.0 hour for drafting

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a similar Complaint here was excessive.

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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:

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case update; dates for settlement conference” because it is a

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clerical function.

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settlement conference may be clerical in nature, discussing other

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case updates are not necessarily clerical.

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reduce this entry by 0.1 hour to account for the discussion about

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the dates of the settlement conference.

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While informing the client of the dates of a

The court thus will

Defendant next objects to Potter’s billing of 0.3 hour

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on January 23, 2017, for the following tasks: “reviewed email

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history re: setting dates for conference; drafted notice of

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settlement conference along with proposed order thereto.”

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(Billing Summary at 2.)

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arguably a clerical task; see Wayside Property, 2014 WL 6634324,

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at *3 (reducing attorney’s fees for drafting a notice of a motion

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for summary judgment because it was clerical); however, the court

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does not find that 0.3 hour to review email and draft the notice

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and proposed order is unreasonable.

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Drafting a notice of settlement is

Defendant also objects to an April 19, 2017, entry of

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0.2 hour by Potter to draft a CCDA report because it is a

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clerical function.

There is insufficient evidence indicating
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that this report is clerical in nature or that 0.2 hour is

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excessive.

The court thus will not reduce this entry.

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Defendant next objects to Potter’s billing of 2.0 hours

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on June 26, 2017, to draft plaintiff’s Motion for attorney’s fees

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and costs because it is a boilerplate motion.

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is similar to motions for attorney’s fees filed in unrelated

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cases, e.g., Johnson v. Patel, Civ. No. 2:14-2078 WBS AC, the

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motions are not identical.

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draft the Motion for attorney’s fees and costs is not excessive

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While this motion

The court finds that 2.0 hours to

or unreasonable, and a reduction is not merited.

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Plaintiff estimated that Potter would bill 7.0 hours to

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review the opposition brief, draft the reply brief, and attend

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oral argument.

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plaintiff’s counsel indicated that the Reply brief took 2.4 hours

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to draft.

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opposition and draft the Reply is reasonable.

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(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

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plaintiff’s counsel billed more hours than necessary.

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is aware of defendant’s desire to reduce the amount of attorney’s

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fees owed.

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of attorney’s fees, the court issues this Order without oral

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argument.

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incurred for attending oral argument.

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took 2.4 hours to draft and the court issues this Order without

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oral argument, the court will reduce this estimated entry of 7.0

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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

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2.

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Defendant first objects to the 1.3 hours billed by

Billings by Grace

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Grace on October 25, 2016, to prepare for and conduct the Rule 26

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conference and send notes to the discovery team.

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Summary at 4.)

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the conference took less than five minutes and plaintiff’s

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counsel used their boilerplate Joint Status Report form.

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Vaughn Decl. ¶ 7 (Docket No. 21-1).)

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brevity of the conference and the use of a boilerplate Joint

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Status Report does not justify billing 1.3 hours.

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reduce this entry by 0.5 hour.

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(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

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duplicative of the April 20, 2017, entry.

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a review and approval of the notice of settlement that the

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parties later filed with the court.

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(Docket No. 14); Billing Statement at 4.)

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review and finalization of the settlement agreement signed by the

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parties.

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The entries are not duplicative, and the court will not reduce

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this entry.

The April 20 entry was

(See Notice of Settlement
The May 3 entry was a

(See Billing Statement at 4; Settlement Agreement.)

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3.

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Defendant objects to the 2.0 hours billed by Price on

Billings by Price

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April 17, 2017, to prepare for the mediation conference and

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discuss the mediation with the client and the 7.0 hours billed by

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Price on April 18, 2017, to travel to and appear at the mediation

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conference.

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2.0 hours to prepare for the mediation conference and discuss

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such with plaintiff is clearly excessive.

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hours to prepare and attend a mediation that lasted approximately

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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
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3.0 hours, but plaintiff provides no documentation that the

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mediation lasted 3.0 hours or that the remaining 4.0 hours on

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April 18 was a necessary and reasonable travel time.

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will thus reduce Price’s April 18, 2017, entry by 3.0 hours.

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Chalmers, 796 F.2d at 1210 (9th Cir. 1986) (holding a court may

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reduce hours “where the documentation is inadequate”).

The court
See

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Having made the above reductions, the court finds that

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Potter reasonably expended 15.9 hours, Grace reasonably expended

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3.0 hours, Price reasonably expended 6.8 hours, and Gunderson

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reasonably expended 0.6 hour.
B.

Reasonable Hourly Rate
The reasonable hourly rate is determined according to

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“the prevailing market rates in the relevant community,” Blum v.

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Stenson, 465 U.S. 866, 895 (1984), “for similar work performed by

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attorneys of comparable skill, experience, and reputation,”

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Chalmers, 796 F.2d at 1210-11.

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the forum in which the district court sits,” Prison Legal News v.

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Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010), which here is

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the Sacramento Division of the Eastern District of California.

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The relevant legal community “is

The prevailing party has the burden of producing

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sufficient evidence that its “requested rates are in line with

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those prevailing in the community for similar services by lawyers

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of reasonably comparable skill, experience and reputation.”

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Blum, 465 U.S. at 895 n.11.

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civil rights attorneys is to be calculated by considering certain

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factors, including the novelty and difficulty of the issues, the

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skill required to try the case, whether or not the fee is

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contingent, the experience held by counsel and fee awards in

“The hourly rate for successful

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similar cases.”

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1114 (9th Cir. 2008).

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subset of civil rights practice, the reasonable hourly rate

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merited in routine disability access cases typically falls below

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the hourly rate charged in more complicated civil rights cases.”

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Johnson v. Patel, Civ. No. 2:14-2078 WBS AC, 2016 WL 727111, at

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*3 (E.D. Cal. Feb. 23, 2016).

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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

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Price and Gunderson.

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attorneys practice at the Center for Disability Access (“CDA”).

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Potter is the founder and managing partner of CDA with almost

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twenty years of experience in disability cases, Grace has nearly

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twenty years of experience and eleven in disability access

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litigation, and Price and Gunderson are junior associates.

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(Potter Decl. ¶¶ 8-10 (Docket No. 20-2).)

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concedes that this case involves a straight-forward application

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of the law and did not present novel or difficult issues

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requiring a high level of skill or specialization.

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at 12.)

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(See Billing Statement.)

All of the

Plaintiff’s counsel

(Pl.’s Mem.

The court has examined the experience of Potter, Grace,

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and Price in previous disability access cases brought by

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plaintiff and found that hourly rates of $300 for Potter, $250

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for Grace, and $150 for Price and other junior attorneys were

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reasonable.

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KJN, 2016 WL 3448247, at *2-3 (E.D. Cal. June 23, 2016); see also

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Johnson v. Kamboj LLC, Civ. No. 2:14-00561 MCE AC, 2016 WL

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1043719, at *3 (E.D. Cal. Mar. 16, 2016) (granting Grace an

See, e.g., Johnson v. Gross, Civ. No. 2:14-2242 WBS

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hourly rate of $250 in a similar ADA case).

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does not cite any new cases finding that the reasonably hourly

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rate in Sacramento in a routine disability access case exceeds

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these rates.2

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orders, the court finds that the reasonable rates are $300 for

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Potter, $250 for Grace, and $150 for Price and Gunderson.

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Plaintiff’s counsel

For the reasons expressed in the court’s prior

Accordingly, the lodestar in this case is $6,630,
calculated as follows:

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Potter:

15.9

x

$300

=

$4,770

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Grace:

3.0

x

$250

=

$

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Price:

6.8

x

$150

=

$1,020

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Gunderson:

0.6

x

$150

=

$

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750

90

$6,630

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Because neither party seeks a multiplier or reduction

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

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lodestar amount is reasonable,” Fischer, 214 F.3d at 119 n.4, the

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court finds that no further adjustment to the lodestar is

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warranted.

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II.

Costs

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Under the ADA, a court may award litigation expenses

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and costs.

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Plaintiff seeks $675 in costs.

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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

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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.
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Mot. at 13; Billing Summary at 1.)

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these costs and the court will therefore award them to plaintiff.

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Defendant does not object to

IT IS THEREFORE ORDERED that plaintiff’s Motion for

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attorney’s fees and costs (Docket No. 20) be, and the same hereby

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is, GRANTED.

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attorney’s fees and $675 in costs.

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Dated:

Defendant is directed to pay plaintiff $6,630 in

August 4, 2017

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