Heatherly et al v. Panini et al

Filing 35

ORDER FOR SUPPLEMENTAL SUBMISSION RE: MOTION FOR DEFAULT JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 9/23/2015. (ahm, COURT STAFF) (Filed on 9/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAREN HEATHERLY, et al.,

Case No. 13-cv-04534-JSC

Plaintiffs,
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v.
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PANINI, et al.,
Defendants.

ORDER FOR SUPPLEMENTAL
SUBMISSION RE: MOTION FOR
DEFAULT JUDGMENT
Re: Dkt. No. 15

United States District Court
Northern District of California

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Plaintiffs Daren Heatherly and Irma Ramirez (“Plaintiffs”) bring this action against

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Defendants the Lada Group, Inc. d/b/a Panini and Thomas P. Wiseau, individually and as trustee

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for the Thomas P. Wiseau Revocable Trust, aka “The Wiseau Trust” dated 12/10/1992. Plaintiffs

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allege that Defendants’ restaurant, Panini (the “Business”), in San Francisco, California, is

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operating with architectural access barriers in violation of their civil rights under the Americans

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with Disabilities Act (“ADA”) and California state law. Now pending before the Court is

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Plaintiffs’ motion for default judgment. Having reviewed Plaintiffs’ submission, the Court

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ORDERS Plaintiffs to submit a supplemental submission in support of certain fee requests as set

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forth below.

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First, Plaintiffs request $560 to reimburse the work of Legal Assistants / Word Processors

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A. Cooper and P. Maupin, but it is not clear whether Plaintiffs are categorizing this amount as

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recoverable attorneys’ fees or as costs, since their papers appear to do both. (Compare Dkt. No.

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34-5 at 2 (including Cooper and Maupin in “total attorney, paralegal & word processor” amount),

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with Dkt. No. 34 at 9 (requesting reimbursement for the legal assistant and word processor as out-

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of-pocket costs in the amount of $560). Plaintiffs argue they are entitled to reimbursement under

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the ADA, 42 U.S.C. § 12205, which grants the Court discretion to award the prevailing party “in

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any action or administrative proceeding commenced pursuant to [the ADA] . . . a reasonable

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attorney’s fee, including litigation expenses, and costs.” (Dkt. No. 33 at 26.) The entry of default

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judgment would render Plaintiffs the prevailing party in this action. Sceper v. Trucks Plus, No.

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Civ. 09-0801, 2009 WL 3763823, at *6-7 (E.D. Cal. Nov. 2, 2009) (citing Buckhannon Bd. &

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Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)).

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Nevertheless, “the fee applicant bears the burden of establishing entitlement to an award and

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documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S.

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424, 437 (1983).

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Courts in this District often include in an attorneys’ fee award reimbursement for work
performed by a paralegal, see, e.g., Gonzalez v. Rest., No. 14-cv-03099-BLF, 2015 WL 4481978,

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United States District Court
Northern District of California

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at *5 (N.D. Cal. July 22, 2015); Bd. of Trs. v. LML Enters., Inc., No. C 13-3117 RS, 2014 WL

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2880023, at *6 (N.D. Cal. June 24, 2014) (collecting cases), including in ADA access cases. See,

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e.g., Ascencio v. ADRU Corp., No. C 12-04884 WHA, 2014 WL 203212, at *10-11 (N.D. Cal.

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Jan. 6, 2014). But not all legal assistant tasks are compensable. “Clerical or secretarial tasks that

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contribute to the work product should not be billed at a paralegal [or lawyer’s] rate, regardless of

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who performs them, and instead [should be] billed separately, at market rates, following the given

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practice in a community.” Rodgers v. Claim Jumper Rest., LLC, No. 13-CV-5496, 2015 WL

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1886708, at *8 (N.D. Cal. Apr. 24, 2015) (internal quotation marks omitted) (second alteration in

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original) (citing Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992)). By

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contrast, “purely secretarial or clerical tasks are generally not recoverable in a motion for

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attorney’s fees and should instead be considered a part of normal overhead costs.” Id.; see also

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Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (“[F]iling, transcript, and document

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organization time was clerical in nature and should have been subsumed in firm overhead rather

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than billed at paralegal rates.”); Moralez v. Whole Foods Mkt., Inc., No. C 12-01072 CRB, 2013

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WL 3967639, at *4 (N.D. Cal. July 31, 2013) (“Fees for work that is clerical in nature are

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considered part of normal overhead costs.”).

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Here, Plaintiffs have not provided the Court any information detailing the nature of the
work performed by A. Cooper and P. Maupin, and instead merely note that they are Legal
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Assistants or Word Processors who performed 9.8 and 4.2 hours of work, respectively, billed at a

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$40 hourly rate. (Dkt. No. 34-5 at 2.) Absent further explanation of how that time was spent, the

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Court cannot determine whether the work qualifies as a compensable litigation expense. In their

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supplemental papers, Plaintiffs should cite legal authorities and provide evidence to support their

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argument that they are entitled to the requested fees for the assistants’ work. If Plaintiffs choose

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not to submit further evidence clarifying the roles of Cooper and Maupin, the Court will conclude

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that their work was merely clerical in nature and should not be compensated.

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Second, Plaintiffs contend that the same statutory provisions entitle them to $1,437.75 in
fees for the work of Certified Accessibility Inspector/Plans Examiner Rick Sarantschin as an

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expert witness. (Dkt. No. 33 at 28.) Section 505 of the ADA authorizes a prevailing party to

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United States District Court
Northern District of California

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recover costs and litigation expenses, including expert witness fees. Lovell v. Chandler, 303 F.3d

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1039, 1058-59 (9th Cir. 2002); 42 U.S.C. § 12205; see, e.g., Rodgers, 2015 WL 1886708, at *13-

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14 (awarding expert witness fees as litigation expenses), including in ADA cases where the

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witness inspection “served as the foundation for the specific alterations that Defendants were

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ordered to make.” Hohlbein v. Utah Land Res. LLC, 432 F. App’x 655, 656 (9th Cir. 2011); see

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also Fortson v. Marriot Int’l, Inc., No. CV 11-01454 LB, 2013 WL 1832411, at *10 (N.D. Cal.

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May 1, 2013) (awarding expert witness fees in access barrier case for experts who visited the site

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and testified about why certain structures constituted barriers).

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In his declaration submitted in support of Plaintiffs’ motion for default judgment, Mr.

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Sarantschin avers that he performed an inspection of the Business in February 2013 and August

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2015. (Dkt. No. 26 ¶¶ 4-5, 7.) The Sarantschin Declaration does not explain how much time he

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spent inspecting the Business or preparing his declaration. The Court cannot determine the

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reasonableness of the requested fee on this record; Plaintiffs must provide evidence to support the

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requested total, such as a bill of the hours Mr. Sarantschin expended or his usual rates and hours

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worked.

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Accordingly, should Plaintiffs wish to provide additional evidence regarding the above

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issue, they shall file and serve on Defendants a supplemental submission addressing the questions

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set forth above by October 7, 2015. If no supplemental submission is filed by that date, the Court
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will take the motion under submission based on the current record. Plaintiffs shall also serve a

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copy of this Order on Defendants within three days of the date of this order.

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IT IS SO ORDERED.
Dated: September 23, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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