Fortson v. Marriott International Inc.

Filing 95

ORDER REGARDING MOTION FOR ATTORNEY FEE'S AND COSTS (RE: ECF NO. 85) by Magistrate Judge Laurel Beeler. Granting 85 Motion for Attorney Fees. The motion hearing on May 2, 2013 at 9:30 a.m. is VACATED. (ls, COURT STAFF) (Filed on 5/1/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division

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No. CV 11-01454 LB

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For the Northern District of California

UNITED STATES DISTRICT COURT

JAYNE FORTSON,
ORDER REGARDING MOTION FOR
ATTORNEY’S FEES AND COSTS

Plaintiff,
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v.

[Re: ECF No. 85]

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MARRIOTT INTERNATIONAL, INC.,
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Defendant.
_____________________________________/

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INTRODUCTION

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Plaintiff Jayne Fortson, M.D., (“Dr. Fortson”) sued Marriott International after she was injured

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while staying at the Marriott Marquis San Francisco Hotel. Ex. A to Notice of Removal, ECF No. 1

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at 12, 15.1 Dr. Fortson, a paraplegic, was moving between the toilet and her wheelchair when she

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fell and broke her femur at the hotel. Id. She sued for damages and declaratory and injunctive relief

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based on the following statutory and common law causes of action: (1) the Americans with

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Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12102; (2) California’s Unfair Competition Law (the

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“UCL”), Cal. Bus. & Prof. Code § 17200; (3) California’s Unruh Act, Cal. Civ. Code § 51; (4)

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California’s Disabled Persons Act, Cal. Civ. Code § 54; (5) negligence; (6) negligence per se; and

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.

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(7) premises liability. Id. at 13-19.

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The parties settled Dr. Fortson’s clams for injunctive relief and damages but reserved the

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determination of attorney’s fees and costs for the court. See Notice of Settlement and Order

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Vacating Pretrial Conference and Trial, ECF No. 82 at 2. Dr. Fortson asked for $153,765.00 in

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attorney’s fees, a multiplier of 2.0, and costs of $24,792.81. See Motion, ECF No. 85. For the

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reasons stated below, the court GRANTS Dr. Fortson’s motion in part and awards $138,388.50 in

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attorney’s fees and $17,555.77 in costs.2

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STATEMENT

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On February 16, 2013, Dr. Fortson filed a complaint against Marriott in state court. Notice of

designated room at the Marriott Marquis San Francisco Hotel but encountered several accessibility

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For the Northern District of California

Removal, ECF No. 1. In her complaint, Dr. Fortson alleged that she stayed at a handicapped

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barriers in the room. Ex. A to Notice of Removal, ECF No. 1 at 12-13. She alleged that the height

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of the toilet seat and shower seat did not comply with ADA standards. Id. at 13. Because the

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shower was not in compliance with ADA standards, Dr. Fortson was not able to use the shower. Id.

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In addition, Dr. Fortson fell when she attempted to move from the ADA non-compliant toilet seat to

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her wheelchair, causing a fracture in her right femur. Id. Dr. Fortson alleged Marriott’s

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noncompliance proximately caused her injuries.3 Id. at 12.

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The court finds this case suitable for determination without oral argument. See Civil Local
Rule 7-1(b).
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More specifically, in Dr. Fortson’s trial brief, she stated that the toilet seat was 1 ¼ inches
lower than the ADA standard and therefore, caused the grab bar that is next to the toilet seat to be
too high for her reach. Trial Brief, ECF No. 77 at 3. Unable to use the grab bars, she attempted to
transfer herself by placing her right hand on the toilet seat and her left hand on the wheel chair. Id.
She elaborated further,
The front of Dr. Fortson’s wheel chair is 19 inches, which means she needed to lift
herself 3 ¼ inches to successfully transfer to the wheelchair. Fortson was unable to
lift herself the 3 ¼ inches from the toilet seat to the chair. As a result, she fell to the
bathroom floor. When she fell, her legs went under her body, which caused her right
femur to break. Id.

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About one month later, Marriott removed the suit from state court to this court. Notice of

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Removal, ECF No. 1. On June 23, 2011, Marriott replaced the non-compliant toilet that Dr. Fortson

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previously used with an ADA compliant toilet. Maciel Decl., ECF No. 87 at 3; Response, ECF No.

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89 at 8. Thereafter, on October 3, 2011, the case was referred to mediation. 10/03/11 Order, ECF

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No. 22. A few months later, the parties indicated in a joint case management statement that the

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“mediation resulted in a Stipulation entered into by the parties conceding that the injunctive relief

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claims raised by Plaintiff’s complaint have been resolved.” 01/25/12 Statement, ECF No. 24 at 5.

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Thereafter, the parties engaged in several sessions of mediation to resolve the remaining issues,

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including attorney’s fees. 08/23/12 Joint Statement, ECF No. 38 at 6; 02/27/12 Civil Minutes, ECF

parties entered into a confidential settlement agreement and informed the court of their settlement

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For the Northern District of California

No. 27; Pretrial Order, ECF No. 41; 02/19/13 Joint Statement, ECF No. 55 at 3. Ultimately, the

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agreement (including the amount of the settlement) on March 7, 2013. Notice, ECF No. 81.

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The parties stipulated that the court would determine reasonable attorney’s fees and costs. See

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Motion, ECF No. 85 at 11; Thomas Decl., ECF No. 85-3 at 16; 3/12/13 Order, ECF No. 82 at 2. The

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parties stipulated to, and the court ordered, several extensions of time for Plaintiff to file her motion

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for fees and costs. See 3/18/13 Order, ECF No. 84. Plaintiff filed her motion on March 25, 2013.

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See Motion, ECF No. 85. In it, she asks the court to award attorney’s fees for 331.2 hours at

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$450.00 for a total of $149,040.00, and she also asks for a 2.0 multiplier, which results in a total of

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$298,080.00. Motion, ECF No. 85 at 14. In her reply, she asks for an additional 10.5 hours for the

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work to file the reply brief. Reply, ECF No. 90-1 at 2. She also asks the court to tax $24,792.81 in

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costs. Ex. A to Thomas Decl., ECF No. 85-3 at 22.

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ANALYSIS
I. LEGAL STANDARD

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A. Statutory Authority for Awarding Plaintiff Attorney’s Fees

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The ADA permits the court “in its discretion” to award attorney’s fees and costs to the

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“prevailing party.” 42 U.S.C. § 12205; Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134

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(9th Cir. 2002). A plaintiff is considered the “prevailing party” if “he or she enters into a legally

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enforceable settlement agreement against the defendant.” Barrios, 277 F.3d at 1134; Richard S. v.

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Dep’t of Developmental Servs., 317 F.3d 1080, 1086-88 (9th Cir. 2003). The California Unruh Act

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similarly permits an award of attorney’s fees to a prevailing party. Cal. Civ. Code §§ 52, 54.2, 55.

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Because the ADA and California law both authorize fee awards in this matter, the court will analyze

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Dr. Fortson’s claim under federal law, except where California law provides for recovery

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unavailable under federal law. See George v. Bay Area Rapid Transit District (BART), No. C 00-

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2206 CW, 2007 WL 2778784, at *3 (N.D. Cal. Sept. 21, 2007) (citing Barrios, 277 F.3d at 1137);

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Saldana-Neily v. Taco Bell of Am., No. C 04-4571 MJJ, 2008 WL 793872, at *3 (N.D. Cal. Mar. 24,

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2008).

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B. Calculating Fees Under Federal Law4
In the Ninth Circuit, the proper method for determining reasonable attorney’s fees is to use the
“lodestar method.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Jordan v. Multnomah Cnty.,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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815 F.2d 1258, 1262 (9th Cir. 1987). First, the trial court calculates attorney’s fees by multiplying

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the number of hours reasonably spent by counsel by a reasonable hourly rate. Morales v. City of San

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Rafael, 96 F.3d 359, 363 (9th Cir. 1996). In setting the rate, courts consider the factors set forth in

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For attorney’s fee awards authorized under California law, the court applies a similar
framework to determine the appropriate fee amount. The fee-setting inquiry in California begins
with the lodestar, which represents the number of hours reasonably expended multiplied by the
reasonable hourly rate. Center for Biological Diversity v. County of San Bernardino, 111 Cal. Rptr.
3d 374, 398 (Cal. Ct. App. 2010); Chavez v. City of Los Angeles, 47 Cal. 4th 970, 985 (2010). The
lodestar is considered the basic fee for comparable services in the legal community and it may be
adjusted by the court based on several factors. Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001)
(citing Serrano v. Priest, 20 Cal. 3d 25, 49 (1977)). The California Supreme Court has explained
that “[t]he purpose of such adjustment is to fix a fee at the fair market value for the particular action.
In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or
required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to
approximate the fair market value for such services.” Id. (citing Serrano, 20 Cal. 3d at 49). To
determine whether a multiplier should be applied, the court considers the following factors: (1) the
novelty or difficulty of the questions involved; (2) the expertise and capability of counsel; (3) the
results obtained; (4) the contingent risk involved in the case; (5) the extent to which the nature of the
litigation precluded other employment by the attorneys; and (6) whether the attorneys received
public and/or charitable funding. Serrano, 20 Cal. 3d at 48-49.
Unlike federal law, California law authorizes the court to apply a multiplier to the lodestar
figure to adjust for contingency risk. Id.
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Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975). The Kerr factors are: (1) the

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time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill

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requisite to perform the legal service properly; (4) the preclusion of other employment by the

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attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or

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contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved

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and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the

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“undesirability” of the case; (11) the nature and length of the professional relationship with the

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client; and (12) awards in similar cases. Id.

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After deciding the appropriate hourly rate, the court then examines the fee applicant’s

“excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Then, in appropriate

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contemporaneously recorded billing records and exclude from the lodestar amount hours that are

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cases, the court may adjust the lodestar figure based upon the Kerr factors that were not subsumed

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into the initial lodestar calculation. McGrath v. Cnty. of Nevada, 67 F.3d 248, 252 (9th Cir. 1995).

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There is a strong presumption that the lodestar figure represents a reasonable fee, and any upward

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or downward adjustment of that figure is proper only in “rare and exceptional cases.” Van Gerwen

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v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal citations omitted).

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II. MEET AND CONFER UNDER LOCAL RULES

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The parties did not meet before filing Dr. Fortson’s motion, and their explanations for why they

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failed to meet conflict. Compare Gorog Decl., ECF No. 85-1 at 4, with Sommer Decl., ECF No. 88,

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¶ 15. They should have followed the local rules better. See Civ. L.R. 54-5. Ultimately, the parties

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met and conferred after Dr. Fortson filed her motion for attorney’s fees and costs and before

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Marriott filed its opposition. Opposition, ECF No. 89 at 11; Sommer Decl., ECF No. 88, ¶ 16.

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Under all the circumstances, the court will not deny the motion on a procedural defect.

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III. LODESTAR APPLICATION

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Dr. Fortson requests fees for 331.2 hours in the underlying case (or $149,040.00 at $450.00 per

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hour) plus an additional 10.5 hours for the reply brief for a total of 341.7 hours (or $153,765.00 at

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$450 per hour) for two attorneys, Stephen J. Gorog and Mark C. Thomas. See Thomas Decl., ECF

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No. 85-3; Gorog Decl., ECF No. 85-1; Reply, ECF No. 90 at 2. She also asks for a multiplier of 2.

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Motion, ECF No.85 at 14. This chart shows the breakdown:

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Attorney

Hours Claimed

Hourly Rate

Total

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Stephen J. Gorog

85.7

$450

$38,565.00

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Mark C. Thomas

256

$450

$115,200.00

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Multiplier

341.7

$450

$153,765.00

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To calculate the lodestar amount here, the court first evaluates whether the rates are reasonable
and then examines the reasonableness of the time billed.

Dr. Fortson’s counsel, Mr. Thomas and Mr. Gorog, each filed declarations in support of their

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requested hourly rates of $450. Thomas Decl., ECF No. 85-3; Gorog Decl., ECF No. 85-1. They

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also filed the declaration of Stephen Murphy (“Mr. Murphy”), a solo practitioner, who states that

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A. Reasonable Hourly Rate

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Mr. Thomas’s and Mr. Gorog’s hourly rates of $450 are reasonable in the community for lawyers

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with comparable experience and reputation. Murphy Decl., ECF No. 85-2, ¶ 7. The court finds that

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Mr. Thomas’s and Mr. Gorog’s hourly rates are reasonable.

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The first step in the lodestar analysis requires courts to determine a reasonable hourly rate for the

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fee applicant’s services. This determination is made by examining the prevailing market rates in the

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relevant community charged for similar services by “lawyers of reasonably comparable skill,

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experience and reputation.” Hensley, 461 U.S. at 433; Blum v. Stevenson, 465 U.S. 886, 895 n.11

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(1984); Davis v. City and Cnty. of San Francisco, 976 F.2d 1536, 1545-46 (9th Cir. 1992). The

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“relevant community” for these purposes is the district in which the lawsuit proceeds. Barjon v.

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Dalton, 132 F.3d 496, 500 (9th Cir. 1997); Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.

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1992).

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The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits

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of its attorneys, that the requested rates are appropriate. Jordan, 815 F.2d at 1263. Once the fee

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applicant has met its burden, the opposing party “has a burden of rebuttal that requires submission of

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evidence to the district court challenging the accuracy and reasonableness of the hours charged or

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the facts asserted by the prevailing party in its submitted affidavits.” Gates, 978 F.2d at 1397.

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Courts may also consider its own expert knowledge and experience in setting an hourly rate for the

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lodestar calculation. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).
A plaintiff can satisfy her burden of production in various ways. Affidavits of the fee applicant’s

other cases, particularly those setting a rate for the attorneys, may be sufficient to establish

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reasonable hourly rates. United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th

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Cir. 1990); Davis, 976 F.2d at 1547; see Blackwell v. Foley, 724 F. Supp. 2d 1068, 1079 (N.D. Cal.

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2010) (looking to rates awarded to counsel in previous cases as evidence of the market value of their

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services). That said, reasonable hourly rates are “not made by reference to rates actually charged the

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prevailing party.” Schwarz v. Sec’y of Health and Human Servs., 73 F.3d 895, 908 (9th Cir. 1995)

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(quotation omitted). When deciding the appropriate hourly rate for counsel’s services, a court may

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consider: (1) the novelty and complexity of the issues; (2) the special skill and experience of

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attorney and other attorneys regarding prevailing fees in the community and rate determinations in

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counsel; (3) the quality of representation; and (4) the results obtained. Cabrales v. Cnty. of Los

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Angeles, 864 F.2d 1454, 1464 (9th Cir. 1988).

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1. Mark Thomas’s Hourly Rate

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Mr. Thomas’s requested hourly rate is $450. See Motion, ECF No. 85 at 14; Thomas Decl., ECF

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No. 85-3, ¶ 6. After working at Fisher & Phillips LLP and Winston & Strawn LLP for a total of four

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years, Mr. Thomas formed Brownstein Thomas LLP in 2005 and is a partner at the firm. Thomas

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Decl., ECF No. 85-3, ¶ 4. All of the work performed by his firm on the suit was performed by Mr.

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Thomas. Id. ¶ 2. He has experience representing both plaintiffs and defendants in disability

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discrimination claims, including ADA access suits.5 Id. ¶ 4.

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In support of Mr. Thomas’s hourly rate, Mr. Murphy submitted a declaration confirming Mr.

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Thomas’s credentials and the prevailing hourly rate for attorneys of similar skill, experience, and

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reputation. Murphy Decl., ECF No. 85-2, ¶¶ 2, 7. As Marriott points out, Mr. Murphy is a

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plaintiffs’ litigation lawyer, and he did not indicate that he has any experience with disability access

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In Mr. Sommer’s declaration, he states that he conducted a search of Mr. Thomas’s
litigation history in the Northern District Court of California using Pacer. Sommer Decl., ECF No.
88, ¶ 14. In that report, he found that Mr. Thomas has only litigated one case, Loskot v. Han, Case
No. 09-04020, involving disability access in this District. Id.

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cases. Id. ¶ 3; Opposition, ECF No. 89 at 20. Despite this, Mr. Murphy indicated that he had

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obtained jury verdicts in discrimination disability and personal injury cases. Murphy Decl., ECF

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No. 85-2, ¶¶ 4-5. Mr. Murphy declares that he is familiar with rates charged in plaintiffs litigation

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by similarly-skilled lawyers in Northern California, and in his experience, Mr. Thomas’s rates are

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“within the mid-range of fees” in the Bay Area for lawyers with comparable experience and

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reputation.6 Id. ¶ 7.

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Marriott also cites cases from the Eastern and Central Districts of California to oppose Mr.

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Thomas’s requested hourly rate of $450. Opposition, ECF No. 89 at 20. In Delgado v. Mann Bros.

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Fuel, Inc., the attorney asked for, and the court found reasonable, an hourly rate of $350. Case No.

Central District of California held $425 per hour was reasonable for an attorney who had been

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CV10-0720, 2010 WL 5279946 (E.D. Cal. Dec. 13, 2010). In Meola v. JKJ Investments Inc., the

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practicing for 27 years and focused exclusively on disability access cases for the past seven years.

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Case No. CV04-00960, 2011 WL 1638163 (C.D. Cal. Apr. 28, 2011). The problem is that the

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relevant community is the Northern District, not the Eastern District of California or the Central

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District of California. See Barjon v. Dalton, 132 F.3d at 500.

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On this record, and based on the court’s own knowledge of rates for similar cases with counsel
of similar experience, the court finds that Mr. Thomas’s current rate of $450 is reasonable.
2. Stephen Gorog’s Hourly Rate
Mr. Gorog’s hourly rate is $450. See Motion, ECF No. 85 at 14; Gorog Decl., ECF No. 85-1 at

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3, ¶ 8. Mr. Gorog graduated from Quinnipiac University School of Law in 1999. Id. ¶ 6. Since

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2004, he has been a solo practitioner with a focus on personal injury litigation. Id. Before becoming

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a solo practitioner, he spent four years working on civil litigation matters at Lewis, D’Amato,

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Brisbois and Brisgaard (now Lewis, Brisbois, Brisgaard and Smith) and one year at Pacific Law

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Mr. Murphy also states that his understanding of the rates charged in the community
derives from many sources, including: 1) researching attorney’s fees during his participation in
attorney’s fees litigation; 2) “discussing attorneys’ fees rates, billing and work practices;” and 3) “by
obtaining and providing declarations from other attorneys regarding market rates and attorney’s fees,
billing and work practices.” Id. ¶ 9.
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Partners. Id. In his declaration, Mr. Gorog did not indicate whether he has any experience in similar

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suits. See generally Gorog Decl., ECF No. 85-1. Mr. Murphy also confirmed that Mr. Gorog’s

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hourly rate is reasonable within the community for lawyers with comparable experience and

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reputation. Murphy Decl., ECF No. 85-2, ¶ 7.

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Marriott raises the same challenges to Mr. Gorog’s rate. Opposition, ECF No. 89 at 18-21. On

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this record, and considering rates for attorneys in this district, the court finds that Mr. Gorog’s

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current rate of $450 is reasonable.

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B. Reasonableness of the Hours Expended

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Having determined the reasonableness of the hourly rates, the court turns to the second

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component of the lodestar calculation.
1. The Standard
To determine the reasonable hours expended in a case, courts exclude hours that are “‘excessive,

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redundant, or otherwise unnecessary.’” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.

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2009) (quoting Hensley v. Eckerhart, 461 U.S. at 434). The party requesting fees must provide

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detailed time records documenting the tasks completed and the time spent. See Hensley, 461 U.S. at

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434; McCown, 565 F.3d at 1102; Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir.

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2007); Ravet, 2010 WL 3076290, at *2. A fee award ordinarily includes all hours reasonably spent,

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including fees related to obtaining the fee award. See Ravet, 2010 WL 3076290, at *2.

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After the party seeking fees presents its evidence supporting the time billed, the party opposing

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the fees has a “burden of rebuttal that requires submission of evidence to the district court

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challenging the accuracy and reasonableness of the hours charged or the facts asserted by the

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prevailing party in its submitted affidavits.” Gates, 987 F.2d at 1397-98 (citations omitted). The

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party opposing fees must specifically identify defects or deficiencies in the hours requested. See

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Cancio v. Fin. Credit Network, Inc., No. C 04-3755 THE, 2005 WL 1629809, at *3 (N.D. Cal. July

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6, 2005). Conclusory and unsubstantiated objections are insufficient to warrant a reduction in fees.

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See id. Courts have reduced fee awards where prevailing counsel engaged in inefficient or

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unreasonably duplicative billing, or where counsel’s billing records contain insufficiently

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descriptive entries, show evidence of block billing, or billing in large time increments. See e.g.,
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Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir. 2008); Welch v. Metropolitan Life Ins.

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Co., 480 F.3d 942 (9th Cir. 2007).

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2. The Objections

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Mr. Thomas’s hours total 260.5 (including 10.5 hours for the reply brief) and Mr. Gorog’s hours

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total 85.7. Marriott identifies specific entries that it says demonstrate that counsel either overbilled

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or overstaffed routine tasks.

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First, Marriott challenges billing after April 2011 regarding the injunctive relief claim totaling

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28.9 hours (20 hours by Mr. Thomas and 8.9 by Mr. Gorog). The argument here is that the ADA

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part of the lawsuit could have been resolved easily without litigation, Defendant agreed to

The court observes here that this is a routine issue in ADA cases that often drives early remediation

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remediation, and Plaintiff’s continued litigation was unnecessary. Opposition, ECF No. 89 at 12-14.

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(even before the parties have settled on damages), and this issue demonstrates the appropriateness of

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the court’s general ADA order. Still, Marriott has a point about fees incurred when injunctive relief

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is likely to be resolved.

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Second, Marriott challenges Mr. Thomas’s allegedly unnecessary research time7 on (1) drafting a

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memorandum and conducting research on damages under Title III of the ADA (2.2 hours), (2)

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conducting research to determine the damages available under the Unruh Act (3.5 hours), and (3)

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researching the issue of spoliation of evidence (4.5 hours). Opposition, ECF No. 89 at 15. The law

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is unambiguous under Title III of the ADA; damages are not recoverable. See Wander v. Kaus, 304

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F.3d 856, 858 (9th Cir. 2002) (“Damages are not recoverable [by private actors] under Title III of

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the ADA-only injunctive relief is available for violations of Title III.”) (citation omitted). The

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amounts in this category are excessive.

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Third, Marriott challenges 6.3 hours spent researching and then moving for relief from General
Order 54. The court agrees that this motion incurred unnecessary costs.

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The Sommer Declaration shows other allegedly excessive research, but Marriott did not
address these in its opposition, and the court does not consider them. See Sommer Decl., ECF No.
88 at 6. In any event, the time associated with those events appears reasonable and not excessive,
duplicative, or unnecessary. See McCown, 565 F.3d at 1102.

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Fourth, Marriott challenges Mr. Thomas’s 1.4 hours spent “traveling to and attending the defense

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medical examination” of Dr. Fortson. Opposition, ECF No. 89 at 15. Marriott says it was not

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necessary, and Mr. Thomas says that it was. No one cites cases. The court’s research reveals that

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federal courts generally prohibit third-party observers (including counsel) from attending Rule 35

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physical examinations. See, e.g., Holland v. U.S., 182 F.R.D. 493, 495 (D.S.C. 1998) (“The weight

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of federal authority, however, favors the exclusion of the plaintiff’s attorney from a Rule 35

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examination absent a compelling reason”) (collecting cases); William W. Schwarzer, A. Wallace

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Tashima & James M. Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial § 11:2195 (The Rutter

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Group 2012). But see Cal. Code Civ. P. § 2032.510 (permitting counsel’s attendance at physical

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Fifth, Marriott challenges what it characterizes as essentially double billing for a trial brief that is

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examination but not mental examination).

the close equivalent of the mediation brief. The trial brief billing was 6.0 hours for drafting and 3.0

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hours for revising, editing, and finalizing. The mediation brief billing was 17.6 hours. Opposition,

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ECF No. 89 at 16; see Ex. G to Maciel Decl., ECF No. 88-7; Ex. H to Maciel Decl., ECF No. 88-8.

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The only differences between the two documents are at most four paragraphs and one small chart.

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See id. The court finds that the amount spent on two similar briefs was excessive.

17

Sixth, Marriot also challenges the 4.1 hours for the complaint as excessive because it is a shell

18

complaint with boilerplate language. Opposition, ECF No. 89 at 16; see Doran v. Corte Madera

19

Inn Best W., 360 F. Supp. 2d 1057, 1062 (N.D. Cal. 2005) (holding that the number of hours counsel

20

claimed for drafting boilerplate ADA complaint should be reduced from 4.3 to 0.5); Welch, 480 F.3d

21

at 950 (“the district court did not err in reducing the requested 13 hours for preparation of Welch’s

22

motion for attorney’s fees by 9 hours because the motion’s language was “boilerplate”). The court

23

reviewed the complaint and agrees that it contains routine allegations.

24

Seventh, Marriott challenges alleged block billing: 51.5 hours by Mr. Thomas and 14.0 by Mr.

25

Gorog. Opposition, ECF No. 90 at 17; Sommer Decl., ECF No. 88, ¶ 13. “Block billing” is

26

discouraged because it may make it difficult for a court to determine the reasonableness of the hours

27

billed. Robinson v. Plourde, 717 F. Supp. 2d 1092, 1100 (D. Haw. 2010). The court notes that here,

28

the “block billing” entries generally only contained two or three tasks. See Sommer Decl., ECF No.

CV 11-01454 LB
ORDER

11

1

88, ¶ 13; Ex. A to Thomas Decl., ECF No. 85-3. These times entries do not overly hinder the court’s

2

ability to determine the number of hours that can be reasonably claimed. Still, billing entries for

3

2/17/13 and 2/18/13 have the same descriptions. This makes it difficult to determine how much time

4

was spent on particular activities. See Welch v. Metro Life Ins. Co., 480 F.3d at 948.

5

Eighth, Marriott asserts that it was not necessary for both Mr. Thomas and Mr. Gorog to attend

6

the February 3, 2011 “sub rosa” inspection (1.50 hour), the June 23, 2011 site inspection (2.00

7

hours), and the February 15, 2013 mediation (6.00 hours). Opposition, ECF No. 89 at 15. The court

8

agrees that under the particular circumstances of this case, full billing for both lawyers is not the

9

exercise of billing judgment that the court expects in fees litigation.

10

Eighth, Marriott objects to 46.9 hours of internal conferences between Mr. Thomas (25.3 hours)
and Mr. Gorog (21.6 hours) as “excessive, duplicative, and unnecessary internal conferences.”

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For the Northern District of California

UNITED STATES DISTRICT COURT

11

Opposition, ECF No. 89 at 16. Marriott explains that “Mr. Thomas was the lead attorney and

13

handled all aspects of discovery, whereas Mr. Gorog’s expertise was limited to the personal injury

14

claim and had minimal involvement in discovery.” Id. The court recognizes that counsel often meet

15

to discuss litigation strategies and case-related items. Still, this is the sort of situation where the

16

exercise of billing judgment would militate in favor of a reduction of billing.

17
18
19

In all, the court agrees that there are instances of unnecessary duplication of efforts that inflated
the number of hours billed and billing that was beyond that necessary for the task.
The approach that the courts in this district have taken in cases with similar billing patterns is a

20

ten-percent across-the-board reduction in fees to reflect the ordinary exercise of billing judgment.

21

See 8/13/10 Report and Recommendation, Overbo v. Loews California Theatres, Inc., No. C 07-

22

05368 MHP (LB), ECF No. 92 at 22-24 (collecting cases and summarizing this approach). As the

23

undersigned observed in Overbo, the court does not expect counsel to write off time justifiably

24

incurred in litigating a case, but it expects some exercise of billing judgment to ensure that tasks are

25

efficiently delegated and completed in a cost-efficient manner. Id. at 23. As in Overbo, there is no

26

evidence – either in counsel’s declarations or from the billing statements – that counsel made any

27

reduction in the hours that it billed. See id. The fact that a case is taken on contingency does not

28

relieve attorneys from regularly reviewing time sheets and billing statements to ensure that attorney

CV 11-01454 LB
ORDER

12

1
2
3
4

time is spent wisely. As the Supreme Court explained,
In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less
important here. Hours that are not properly billed to one’s client also are not properly billed to
one’s adversary pursuant to statutory authority.
Id. at 24 (quoting Hensley, 461 U.S. at 434 (internal quotation omitted)).

5

The court finds that a 10 percent reduction in hours that Plaintiff’s counsel spent litigating this

6

case is warranted to bring the number of hours in line with what would be reasonable in this case.

7

A ten-percent reduction means that the total hours are reduced from 341.7 to 307.53. Because

8

Mr. Thomas and Mr. Gorog worked together on this case the court reduces each of their fee awards

9

by 10 percent, rather than specifically allocating the reduction.

Dr. Fortson contends that the court should apply a 2.0 multiplier to the lodestar figure for risk

12
For the Northern District of California

B. Adjusted Lodestar

11
UNITED STATES DISTRICT COURT

10

enhancement. Motion, ECF No. 58 at 17. Specifically, Dr. Fortson asserts that the following factors

13

weigh in favor of a 2.0 multiplier: (1) the great risk taken by Dr. Fortson’s counsel; (2) the

14

exceptional difficulty and complexity of the litigation; (3) the preclusion of other employment;

15

(4) the public interest served; and (5) the excellent results obtained. Id. at 14.

16

As indicated above, federal law does not permit enhancement of fees for contingency risk in

17

actions brought under fee-shifting statutes such as section 505 of the ADA. Dague, 505 U.S. at 566;

18

Payne, 2010 WL 1626588, at 7. California law authorizes the use of multipliers to adjust the

19

lodestar figure to ensure that the figure approximates the fair market value for the particular case.

20

See Ketchum, 24 Cal. 4th at 1132. “When a party prevails under both federal and state law, the

21

district court may apply the more generous provisions of state law in calculating a fee award, such as

22

including a multiplier for contingent fee risk.” Nat’l Fed. for the Blind v. Target Corp. (“NFB”),

23

No. C 06-1802 MHP, 2009 WL 2390261, at 6 (N.D. Cal. Aug. 3, 2009) (citing Mangold, 67 F.3d at

24

1479). Because Plaintiffs prevailed on both ADA and California statutory claims, the Court may

25

consider Plaintiffs’ request to apply a multiplier under California law. Id.

26

In Ketchum, the California Supreme Court explained that when considering whether to apply a

27

multiplier, “[i]n effect, the court determines, retrospectively, whether the litigation involved a

28

contingent risk or required extraordinary legal skill justifying augmentation of the unadorned

CV 11-01454 LB
ORDER

13

1

lodestar in order to approximate the fair market rate for such services.” Ketchum. 24 Cal. 4th at

2

1132. In particular, “[c]ontingency risk is used as a basis for a multiplier in order to ‘compensate for

3

the risk of loss generally in contingency cases as a class.’” Mannick, 2007 WL 2892647, at *12

4

(quoting Beasley v. Wells Fargo Bank, 235 Cal. App. 3d 1407, 1419 (1991)); see also Payne, 2010

5

WL 1626588, at *7 (“Enhancements for contingency risks are designed to compensate lawyers who

6

take contingency fee cases for the risk of non-payment and/or for anticipated delay in receiving

7

payment.”) (citing Ketchum, 24 Cal. 4th at 1138). Thus, the aim of a contingency risk multiplier “is

8

to bring the financial incentives for attorneys enforcing important constitutional rights . . . into line

9

with incentives they have to undertake claims for which they are paid on a fee-for-services basis.”

10

Here, Marriott contends that the questions involved are not difficult because it immediately

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Ketchum, 24 Cal. 4th at 1133.

conceded that it failed to comply with the required height under the ADA for toilet seats.

13

Opposition, ECF No. 89 at 12. Therefore, the only question is whether the height of the seat caused

14

Dr. Fortson’s injury. Id. This, Dr. Fortson’s counsel argue, is a difficult question to resolve because

15

Dr. Fortson is a paraplegic who did not feel any pain when her femur was broken. Motion, ECF No.

16

85 at 16.

17

Dr. Fortson’s attorneys also argue that the lawsuit, which lasted two years, significantly reduced

18

their ability to accept other work. Motion, ECF No. 85 at 18. Mr. Thomas and Mr. Gorog did not

19

suggest that they dedicated themselves exclusively to this case or specify any opportunities that they

20

declined in order to continue this action. See generally Thomas Decl., ECF No. 85-3; Gorog Decl.,

21

ECF No. 85-1.

22

The court finds that the circumstances here do not show a risk justifying application of a

23

contingency fee multiplier. Plaintiff’s case, while important, was not novel or legally or

24

procedurally complicated, and it resulted in a relatively modest settlement. Nor were the hours spent

25

over the course of two years enough to foreclose other work.8 Marriott appeared willing to

26
27
28

8

In his declaration, Mr. Sommer stated that he conducted a Westlaw search on Mr. Gorog’s
and Mr. Thomas’s litigation history from February 2011 to March 2013. Sommer Decl., ECF No.

CV 11-01454 LB
ORDER

14

1

remediate the ADA violations that Dr. Fortson identified in her complaint.9 Also, the court’s award

2

of fees at the requested hourly rate of $450.00 offsets the risk and fully compensates the lawyers for

3

their work.

4

C. Conclusion

5

The total fees award is as follows:

6

Attorney

Hours
Billed

10%
Reduction

Adjusted
Hours

Hourly Rate

Total

8

Thomas

256

- 25.6

230.4

$450

$103,680.00

9

Gorog

85.7

- 8.57

77.13

$450

$34,708.50

10

TOTAL

341.7

-34.17

307.53

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IV. COSTS

$138,388.50

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For the Northern District of California

UNITED STATES DISTRICT COURT

7

Plaintiff seeks costs of $24,792.81. Ex. A to Thomas Decl., ECF No. 85-3 at 22. Marriott

13

challenges $15,090.85 in expert fees, $2,675.00 for the mediator’s fee, and $4,562.04 that Plaintiff

14

spent in airfare and hotel stays to attend her deposition. Opposition, ECF No. 89 at 17-18.

15

A. Expert Consulting Fees

16

The expert fees of $15,090.85 are for Craig Williams ($2,157.62), Dr. Barchuk ($5,000), and Dr.

17

Laura Liptai ($7,933.23). Ex. A to Thomas Decl., ECF No. 85-3. Marriott challenges the fees as

18

not taxable and as unsupported by documentation establishing what they did. Opposition, ECF No.

19

89 at 81.

20

First, as to the recoverability of the costs, section 505 of the ADA authorizes a prevailing party

21

to recover costs and litigation expenses, including expert witness fees. See Lovell v. Chandler, 303

22

F.3d 1039, 1058-59 (9th Cir. 2002); Robins v. Scholastic Book Fairs, 928 F. Supp. 1027, 1036-37

23
24
25
26
27
28

88, ¶ 8. The results showed that Mr. Thomas had filed 13 complaints and Mr. Gorg had filed 23
complaints since Dr. Fortson filed her complaint. Id.
9

In a letter dated April 5, 2011, Marriot stated: “In light of the foregoing, we again request
that the parties enter into a stipulation resolving the issue of injunctive relief and, with supporting
documentation, a reasonable monetary demand with respect to the alleged single access violation.”
Ex. E to Maciel Decl., ECF No. 87-5 at 2.

CV 11-01454 LB
ORDER

15

1

(D. Or. 1996).

2

Second, as to the documentation of what the experts did, Dr. Fortson explained that three experts

3

were retained because Marriott contested the ADA claim, arguing that the height of the toilet did not

4

constitute a barrier under the ADA. Reply, ECF No. 90 at 9. As such, she “was required to retain

5

Craig Williams, an ADA access consultant to identify the violation; Dr. Laura Liptai, a

6

biomechanical expert to testify about the 1 1/4 inch difference would be a barrier under the ADA;

7

and Dr. Barchuk to testify about the impact of the difference.” Id.

8

The court appreciates what happened here: in the end, the issue was damages and not the

9

injunctive relief (an issue that was settled in principle). The parties told the court that in case
management statements along the way. See 1/25/12 Statement, ECF No. 24 at 5. Still, the case did

11

not settle until the eve of trial. On this record, the court awards the costs.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

10

B. Mediator’s Fees

13

Fees for a mediator are not a taxable expense under 28 U.S.C. § 1920.10 See Sea Coast Foods,

14

Inc. v. Lu-Mar Lobster & Shrimp, Inc., 260 F.3d 1054, 1061 (9th Cir. 2001) (“nothing in 28 U.S.C.

15

§ 1920 provides for the costs of a mediator”); see also Robert E. Jones & Gerald R. Rosen, Cal.

16

Prac. Guide: Fed. Civ. Trials and Evidence § 19:213 (The Rutter Group 2012). Accordingly, the

17

court reduces the costs award by $2,675.00.

18

C. Dr. Fortson’s Travel Expenses

19

Generally, the expenses of witnesses who are parties to the suit are not taxable. See Evanow v.

20

M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998). Dr. Fortson argues that she should be able to

21

recover her hotel and airfare expenses because she “did not choose to be injured in San Francisco”

22

and was “forced to file her suit” away from her home in Alaska. Reply, ECF No. 90 at 9-10. This is

23

not a sufficient reason for the court to award the $4,562.04.

24
25
10

26
27
28

Some courts have awarded mediator’s fees based on other federal or state statues but Dr.
Fortson did not mention any other authority to support her request for mediator’s fees. See Andjelic
v. Marken Marketing, Inc., No. 6:05-cv-1877-Orl-22JGG, 2007 WL 2021960, at *2 (M.D. Fla.
2007) (noting that the mediator’s fee is not taxable under 28 U.S.C. § 1920 but awarding mediator’s
fees under 42 U.S.C.. § 12205).

CV 11-01454 LB
ORDER

16

1

D. Conclusion

2

The court taxes $17,555.77.

3
4
5

CONCLUSION
The court grants in part and denies in part Plaintiff’s motion. The court awards awards
$138,388.50 in attorney’s fees and $17,555.77 in costs.

6

This disposes of ECF No. 85.

7

IT IS SO ORDERED.

8

Dated: May 1, 2013

9

_______________________________
LAUREL BEELER
United States Magistrate Judge

10

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For the Northern District of California

UNITED STATES DISTRICT COURT

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CV 11-01454 LB
ORDER

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