Gonzalez v. Machado et al

Filing 91

ORDER granting in part and denying in part 85 Motion for Attorney Fees. (Beeler, Laurel) (Filed on 7/10/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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GABRIEL GONZALEZ,

Case No. 17-cv-02203-LB

Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART THE PLAINTIFF'S
MOTION FOR ATTORNEY’S FEES

v.

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ROY P. MACHADO, et al.,

Re: ECF No. 85

Defendants.

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INTRODUCTION

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Plaintiff Gabriel Gonzalez, who has physical disabilities, cannot walk, and uses a wheelchair

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for mobility, sued the defendants for violations of the Americans with Disabilities Act of 1990

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(“ADA”) and the Unruh Civil Rights Act after he visited their taqueria and was unable to sit at a

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table because the table legs did not “allow for the proper toe clearance.”1 The parties settled the

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case.2 The damages settlement was $6,000.3 The parties did not settle the fees (although on March

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25, 2019, the defendants’ counsel offered $18,000 for fees, and the plaintiff accepted the offer on

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Compl. – ECF No. 1 at 1-3 (¶¶ 1–5, 13). Citations refer to material in the Electronic Case File
(“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

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Notice of Settlement – ECF No. 80 at 1.

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Opp. – ECF No. 87 at 2.

ORDER – No. 17-cv-02203-LB 

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April 1, 2019).4 The deal apparently was not consummated, and the plaintiff moved for $39,565 in

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fees and $1,260 in costs for a total of $40,825.5 The defendants oppose the fees as unreasonable on

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the grounds that (1) seven attorneys expending 70.1 hours on a non-complex case with no

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discovery is excessive (contrasting his own fees of $5,000), and (2) the hourly rates are excessive.6

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The court can decide the motion without oral argument. N.D. Cal. Civ. L. R. 7-1(b). The court

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awards $18,787.50 in fees and $1,260 in costs.

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STATEMENT

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1. Relevant Procedural History
The plaintiff filed the complaint on April 20, 2017.7 The defendants answered on May 15,

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United States District Court
Northern District of California

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2017.8 On August 11, 2017, the parties conducted a joint-site inspection, and the parties thereafter

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filed a notice for need of mediation on September 22, 2017.9 A pre-mediation phone conference

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was held on November 21, 2017.10 On December 19, 2017, the parties filed a joint notice that the

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case had settled and they would file a stipulated dismissal within sixty days.11 They did not file

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it.12

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On March 19, 2018, the plaintiff reported that “[d]espite due diligence by [the] Plaintiff,

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signatures on the settlement documents and funding of the settlement remain outstanding from

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[the] Defendant.”13 Defense counsel did not appear at the March 29 case-management conference,

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Emails – ECF No. 85-8 at 3.

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Billing Records – ECF No. 85-4 at 1.

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Opp. – ECF No. 87 at 1-2.

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Compl. – ECF No. 1.

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Answer – ECF No. 8.

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Joint Case-Management Statement – ECF No. 40 at 6; Notice – ECF No. 19 at 1.

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ADR Remark – ECF No. 24.

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Joint Notice of Settlement – ECF No. 25 at 2.

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Clerk’s Notice – ECF No. 27.

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Joint Status Report – ECF No. 28 at 2.

ORDER – No. 17-cv-02203-LB

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and the court ordered the defendants to show cause why the settlement documents had not been

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finalized and set a hearing for April 19, 2018.14
On April 19, defense counsel reported that he had lost contact with his clients.15 The court set

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a further case-management conference for May 31, 2018 and directed the parties to submit a joint

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update before the conference.16 On May 17, 2018, the parties filed a joint case-management

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statement that did not clarify whether defense counsel had regained contact with his clients.17 The

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court asked for a further joint update by May 21, 2018,18 and on that date, the plaintiff reported

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that he had tried to contact defense counsel and received no response.19 The court issued another

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order to show cause “why the settlement agreement has not been signed, why the agreed-upon
settlement consideration has not been delivered, and why the court should not strike the

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United States District Court
Northern District of California

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defendants’ answer.”20 On June 4, 2018, the defendants responded that they did not have the

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money to pay the plaintiff’s settlement demand, asked for a trial date, and asked for an early

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settlement conference or mediation where the parties might settle on a payment plan.”21

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On June 11, 2018, the court referred the case for a settlement conference.22 The settlement

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judge had two scheduling calls with the parties on July 18, 2018 and August 3, 2018, set an in-

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person settlement conference for September 21, 2018, and ordered the parties to lodge settlement

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statements by September 11, 2018.23 The defendants did not file their statement, and on September

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13, 2018, the settlement judge ordered them to do so by 9 a.m. the next day.24 When they did not,

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Minute Entry – ECF No. 34.

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Minute Entry – ECF No. 38.

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Id.; Clerk’s Notice – ECF No. 39.

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Joint Case-Management Statement – ECF No. 40; Clerk’s Notice – ECF No. 41.

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Clerk’s Notice – ECF No. 41.

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Status Report – ECF No. 42 at 1.

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Order to Show Cause – ECF No. 43 at 2.

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Response to Order to Show Cause – ECF No. 47 at 1–2.

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Order Referring Case – ECF No. 52.

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Minute Entry – ECF No. 57; Minute Entry – ECF No. 59.

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Order – ECF No. 60.

ORDER – No. 17-cv-02203-LB

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she vacated the settlement conference and ordered the parties to schedule a new date.25 On

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September 23, 2019, the undersigned ordered the parties to contact the settlement judge to

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schedule a new date.26 They ultimately had a settlement conference on March 8, 2019, where the

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case settled (except for fees). 27

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2. Facts Relevant to Attorney’s Fees Motion

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2.1 The Parties’ Settlement Discussions

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On May 17, 2019, the plaintiff reported that he had “been in an extended [meet and confer]

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process with counsel for Defendants, Michael Welch, where it was believed that an agreement had
been reached on the planned motion for attorney’s fees. However, this agreement has fallen

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United States District Court
Northern District of California

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through as it appears that counsel for Defendant never had authority to convey the offer that was

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accepted.”28 In an e-mail exchange, the defense counsel suggested an $18,000 settlement for fees

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on March 25, 2019, and the plaintiff accepted that amount on April 1, 2019.29 By April 23, 2019,

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defense counsel responded that the defendants were “trying to figure out how to divide it.”30 On

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May 22, 2019, the plaintiff filed the fees motion, and on June 5, 2019, the defendants opposed it.31

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2.2 Attorneys, Billing Records, Requested Hourly Rates, and Requested Hours

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The following chart summarizes the hourly rates and hours billed by twelve attorneys.32

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Order – ECF No. 61.

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9/23/2018 Docket Entry.

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Clerk’s Notice – ECF No. 62; Order Granting Stipulation – ECF No. 67; Minute Entry – ECF No.
79; Notice of Settlement – ECF No. 80.
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Status Update – ECF No. 82 at 1.

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E-mails – ECF 85-8 at 3.

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Id. at 1

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Mot. – ECF No. 85-1; Opp. – ECF No. 87.

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Billing Records – ECF No. 85-4 at 1–19.

ORDER – No. 17-cv-02203-LB

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Russell Handy “graduated Magna Cum Laude from California Western, has taught as an

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adjunct professor, has clerked for the Ninth Circuit Court of Appeals, and has devoted his private

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practice to disability litigation for the last 19 years.”36 He has prosecuted over one thousand ADA

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cases, over forty trials, has been named one of San Diego’s “Top Attorneys” by a local periodical,

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received an award for his disability work, and has appeared on the news as an ADA expert.37
Phyl Grace has been practicing law for over twenty-two years, focusing on disability issues for

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ten.38 She has litigated hundreds of civil-rights cases and has substantial litigation experience.39

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Mary Melton graduated from the UC Davis School of Law in 1992, has been licensed to

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practice for twenty-four years, and has significant litigation experience in several areas of law.40

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Dennis Price graduated from Loyola Law School in 2011, clerked for the California Court of

United States District Court
Northern District of California

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Appeal, and worked for a large non-profit firm before joining Potter Handy.41 He has been

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involved in litigating hundreds of disability-rights cases.42

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Chris Carson graduated from California Western School of Law in 2011, where she was a

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writer and editor for two journals, and she has litigated disability-access cases for more than five

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years.43

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Amanda Seabock graduated from California Western School of Law in 2011, where she served

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as a representative to the Student Bar Association and participated in various other activities.44 She

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Id. at 2–3 (¶ 7).

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Id. at 3 (¶ 7).

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Id. (¶ 8).

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Id.

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Id. (¶ 9).

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Id. at 4 (¶ 10).

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Id.

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Id. (¶ 11).

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Id. at 4–5 (¶ 12). The billing records are under two last names: Seabock and Lockhart.

ORDER – No. 17-cv-02203-LB

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joined Potter Handy in 2012 first as an intern and then as an attorney.45 She began overseeing the

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firm’s disability-rights cases in California’s Northern District in 2018.46
Isabel Masanque graduated cum laude from California Western School of Law in 2012, where

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she was a writer and editor for two of the school’s journals.47 She interned for the San Diego

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Public Defender’s Office and began her career at the Center for Disability Access in 2012 first as

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an intern and then as an attorney after her admission to the bar in 2013.48
Khushpreet Mehton graduated from California Western School of Law in 2010 and has

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litigated hundreds of civil-rights cases throughout California since 2011.49 He has tried two Title

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III cases in the Central and Southern Districts of California.50
Sara Gunderson graduated from California Western School of Law in 2013, where she

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United States District Court
Northern District of California

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participated in a number of school clubs and activities.51 She has worked exclusively on disability-

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civil-rights cases for the last two years.52

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Prathima Reddy Price graduated from Case Western Reserve University School of Law and

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has litigated various civil-rights cases.53 She obtained “one of the highest settlements in the history

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of New York State” in a suit against the Department of Corrections and Community Supervision.54

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Id.

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Id.

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Id. at 5–6 (¶ 13).

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Id.

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Id. at 6 (¶ 14).

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Id.

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Id. (¶ 15).

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Id.

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Id. at 7 (¶ 16).

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Id.

ORDER – No. 17-cv-02203-LB

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Farrell Goodman graduated from Pepperdine University School of Law in 1985 and has

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substantial civil-litigation experience, including jury and bench trials.55 He has been a mediator

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and arbitrator in Ohio, and (as a solo practitioner) was outside counsel for several corporations.56

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Mr. Potter stated that because his practice relies on billing at a market rate, he has “extensive

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experience with respect to what attorneys specializing in disability law and civil rights bill for civil

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litigation and what courts are routinely awarding and can attest that the rates billed by the Center

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for Disability Access for its attorneys are well within market rates.”57

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ANALYSIS

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1. Legal Standards

United States District Court
Northern District of California

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The federal and state statutes authorize fees for the claims in the complaint. In an ADA case, a

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district court has the discretion to award the prevailing party reasonable attorney’s fees. 42 U.S.C.

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§ 12205. “The Supreme Court has explained that, in civil rights cases, the district court’s

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discretion is limited. A prevailing plaintiff under the ADA should ordinarily recover an attorney’s

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fee unless special circumstances would render such an award unjust.” Jankey v. Poop Deck, 537

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F.3d 1122, 1130 (9th Cir. 2008) (internal quotation marks and citations omitted). The Unruh Act

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allows for attorney’s fees as “may be determined by the court.” Cal. Civ. Code § 52.

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“A reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the

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representation of a meritorious civil rights case. The district court must strike a balance between

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granting sufficient fees to attract qualified counsel to civil rights cases and avoiding a windfall to

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counsel. The way to do so is to compensate counsel at the prevailing rate in the community for

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similar work; no more, no less.” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir.

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2018) (internal quotation marks and citations omitted).

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Id. (¶ 17).

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Id.

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Id. at 8 (¶ 19).

ORDER – No. 17-cv-02203-LB

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California state and federal courts use the lodestar method to determine a reasonable fee

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award.58 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Jordan v. Multnomah Cnty., 815 F.2d

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1258, 1262 (9th Cir. 1987); Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001). “The ‘lodestar’ is

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calculated by multiplying the number of hours the prevailing party reasonably expended on the

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litigation by a reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.

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1996). The next two sections address the hourly rates and the hours billed.

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1.1

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The defendants ask the court to reduce the rates “to the hourly rate established in this

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Hourly Rates

District.”59 The court follows the weight of authority in this district and reduces the hourly rates.
The district court must determine a reasonable hourly rate based on the “experience, skill, and

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United States District Court
Northern District of California

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reputation of the attorney requesting fees.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210

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(9th Cir. 1986). This task is “inherently difficult.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

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To assist with the determination, the court looks to “the rate prevailing in the community for

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similar work performed by attorneys of comparable skill, experience, and reputation.” Chalmers,

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796 F.2d at 1210-11. This community is typically that in which the district court sits. Schwarz v.

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Sec’y of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995). The burden is on the fee

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applicant to show his or her fee is in line with prevailing market rates. Blum, 465 U.S. at 895 n.11.

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“Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the

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community, and rate determinations in other cases, particularly those setting a rate for the

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plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers of

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Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990); see also Widrig v. Apfel, 140 F.3d

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1207, 1209-10 (9th Cir. 1998) (declarations by attorneys regarding the prevailing market rate in

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the community may be enough to establish a reasonable rate in the market). In some cases, the

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court may look outside of the forum community for rates if local counsel is unavailable “either

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As “California law is materially similar to federal law in determining the reasonableness of
attorneys’ fees[,]” this order cites federal law. Malem Med., Ltd. v. Theos Med. Sys., Inc., No. 13–cv–
05236–EMC, 2017 WL 5153300, at n.1 (N.D. Cal. Nov. 7, 2017).

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Opp. – ECF No. 87 at 2.

ORDER – No. 17-cv-02203-LB

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because they are unwilling or unable to perform because they lack the degree of experience,

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expertise, or specialization required to handle properly the case.” Gates v. Deukmejian, 987 F.2d

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1392, 1405 (9th Cir. 1992) (following other circuit courts).
The court reduces the hourly rate for Mark Potter, Russell Handy, and Phyl Grace from $650

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to $425, which is the rate awarded by other courts in this district.60 In a recent Northern District

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case involving the lack of accessible parking, the court — invoking other cases — awarded each

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$425 per hour. See Johnson v. Autozone, Inc., No. 17-cv-02941-PJH, 2019 WL 2288111, at *6

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(N.D. Cal. May 29, 2019) (collecting cases).
The court reduces the hourly rate for Mary Melton, Dennis Price, Isabel Masanque, Chris

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Carson, Amanda Seabock, and Khushpreet Mehton from $500 to $300, again following Johnson v.

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United States District Court
Northern District of California

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Autozone. Id. at *7 (collecting cases and analyzing fee awards).
The court reduces the hourly rate for Sara Gunderson, Farrell Goodman, and Prathima Reddy

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Price from $410 to $250. See id. (collecting cases and awarding a $250 hourly rate for junior

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attorneys, including Ms. Gunderson).

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1.2

Hours Expended on Litigation

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The defendants contend that (1) the 70-plus hours in the case are excessive given the lack of

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complexity (no discovery and one site inspection) and the lawyers’ expertise, (2) the court should

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disregard the fees incurred by Mr. Potter and Mr. Handy (or at least discount their hourly rate)

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because their work “could have been easily handled by less senior attorneys in their office,” and

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(3) as a result, the court should look at the hours for the other lawyers “with suspicion.”61 The

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court already discounted the hourly rates and — on the modest two-page briefing by the

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defendants — will not reduce the rates further. It reduces the hours billed by 14.6 hours.
The fee-seeking party bears the initial burden to prove the reasonableness of hours expended

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using detailed time records documenting completed tasks and time expended. Hensley, 461 U.S. at

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437; Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). The district court may

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Mot. – ECF No. 85-1 at 8–9.

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Opp. – ECF No. 87 at 2.

ORDER – No. 17-cv-02203-LB

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reduce an award if the documentation is inadequate or if it finds that some of the hours were not

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reasonably expended, such as those that are “excessive, redundant, or otherwise unnecessary.”

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Hensley, 461 U.S. at 433-34. The opposing party then bears the burden of challenging the

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accuracy and reasonableness of the hours charged. Deukmejian, 987 F.2d at 1397–98. This must

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be done by specifically identifying defects or deficiencies in the requested hours; conclusory or

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unsubstantiated objections are insufficient to warrant a reduction. Cancio v. Fin. Credit Network,

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Inc., No. C 04-03755 TEH, 2005 WL 1629809, at *3 (N.D. Cal. July 6, 2005). The court also must

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conduct an independent review of the fees for reasonableness. McGrath v. Cnty. of Nevada, 67

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F.3d 248, 254 n.5 (9th Cir. 1995). A defendant “cannot litigate tenaciously and then be heard to
complain about the time necessarily spent by the plaintiff in response.” City of Riverside v. Rivera,

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United States District Court
Northern District of California

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477 U.S. 561, 580 n.11 (1986) (plurality opinion) (quotations and citations omitted).
The plaintiff’s counsel provided detailed billing records. The defendants did not challenge the

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“accuracy and reasonableness of the hours charged” by specifically identifying defects or

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deficiencies in the requested hours and instead made only conclusory or unsubstantiated

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objections. Deukmejian, 987 F.2d at 1397-98. The court somewhat addressed the challenge to

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senior lawyers performing junior-lawyer tasks by reducing the hourly rate. In any event, Messieurs

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Mr. Potter and Mr. Handy “have established a process of being involved at the beginning of

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cases.”62 The billing records support this conclusion and show more involvement early in the case

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and Mr. Potter’s limited periodic review thereafter.63 The court does not second-guess the staffing

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decisions on this record. Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008)

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(“[The court] may not attempt to impose its own judgment regarding the best way to operate a law

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firm, nor to determine if different staffing decisions might have led to different fee requests.”).

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Also, the billing records show that work in the case was delegated to junior attorneys.
The court also reviewed the hours billed for reasonableness.

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Reply – ECF No. 88 at 3.

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Billing Records – ECF No. 85-4 at 1–19.

ORDER – No. 17-cv-02203-LB

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First, the billing records frequently include time entries for 0.1 hours. “Although a one-tenth

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hour timekeeping practice is generally reasonable and [a] careful review of filings should be

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encouraged, billing 0.1 hours for certain practices sometimes requires a reduction.” Jacobson v.

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Persolve, LLC, No. 14-cv-00735-LHK, 2016 WL 7230873, at *10 (N.D. Cal. Dec. 14, 2016)

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(internal quotation marks omitted) (citing Kalani v. Starbucks Corp., No. 13-cv-00734-LHK, 2016

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WL 379623, at *8 (N.D. Cal. Feb 1, 2016)). The court identified 62 billing entries, mostly for 0.1

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hours (and several for 0.2 or 0.3 hours) for Messieurs Potter and Handy for tasks that include

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telling an assistant to email a copy to the Center for Disability Access, reviewing the summons

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and the initial ADA scheduling order, reviewing the consent notice, and reviewing other
administrative docket entries. The total hours are 6.6 hours. “While reviewing such notices takes

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United States District Court
Northern District of California

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some amount of time, experienced counsel must exercise billing judgment to avoid excessive

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accumulation of 0.1 hour entries in reviewing such routine documents and court communications.”

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Kalani, 2016 WL 379623, at *8. Following Jacobson and Kalani, the court reduces the hours by

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50% to 3.3 hours. Phyl Grace also repeatedly billed 0.1 and 0.2 hours (for a total of 6.6 hours) for

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telling her assistant to call or email the defense,64 and the court reduces the hours to 3.3.

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Second, the plaintiff estimated the time for the fees motion: (1) one half-hour to review the

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billing, eliminate duplicative or unreasonable fees, and redact as appropriate, (2) two hours to draft

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the fees motion, and (3) eight hours to write the reply, prepare for oral argument, and attend oral

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argument.65 The plaintiff did not submit supplemental billing records with the reply. The court is

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not holding oral argument, which eliminates that time, and also eliminates the eight hours for lack

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of a submission about the time that the tasks actually took. Autozone, 2019 WL 2288111, at *8

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(citing Hensley, 461 U.S. at 433 (“Where the documentation of hours is inadequate, the district

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Billing Records – ECF No. 85-4 at entries 11/28/17, 12/12/17, 12/19/17, 12/27/17, 1/2/18, 1/8/18,
1/9/18, 1/11/18, 1/16/18, 1/19/18, 1/24/18, 1/29/18, 2/2/18, 2/7/18, 2/12/18, 2/13/18, 2/16/18, 2/19/18,
2/21/18, 2/26/18, 2/28/18, 3/5/18, 3/8/18, 3/13/18, 3/15/18, 3/20/18, 3/22/18, 3/28/18, 4/4/18, 4/5/18,
4/6/18, 4/10/18, 4/13/18, 4/17/18, 4/18/18, 4/23/18, 4/26/18, 4/27/18, 5/1/18, 5/7/18, 5/21/18, 6/4/18,
6/7/18, 6/13/18, 7/17/18, 7/24/18, & 7/30/18.

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Billing Records – ECF No. 85-4 at 19.

ORDER – No. 17-cv-02203-LB

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