Shaw v. Karan & N. Inc et al

Filing 58

ORDER by Magistrate Judge Howard R. Lloyd granting 39 Motion for Attorney Fees and Litigation Expenses; denying 45 Motion for Apportionment of Liability for Attorney Fees and Litigation Expenses. (hrllc1, COURT STAFF) (Filed on 9/25/2013)

1

*E-Filed: September 25, 2013*

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

For the Northern District of California

NOT FOR CITATION

8

United States District Court

7

SAN JOSE DIVISION

11

CECIL SHAW,

No. C12-04687 HRL
Plaintiff,

12
v.
13

KAPTAN GHIMIRE, ET AL.,
14
15

Defendants.
____________________________________/

16

ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTORNEY FEES
AND LITIGATION EXPENSES AND
DENYING DEFENDANT’S MOTION
FOR APPORTIONMENT OF
LIABILITY FOR ATTORNEY FEES
AND LITIGATION EXPENSES
[Re: Docket Nos. 39, 45]

17
Presently before the Court are plaintiff’s motion for attorney fees and litigation expenses and
18
defendant Soto Mayor’s motion for apportionment of liability for attorney fees and litigation
19
expenses. The Court GRANTS plaintiff’s motion for fees and costs, with some reductions, and
20
DENIES defendant’s motion for apportionment, finding that all defendants are jointly and severally
21
liable.
22
I.

BACKGROUND

23
Plaintiff Cecil Shaw sued the owners, lessors, and lessees of the subject property for
24
violations of the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights
25
Act (“Unruh Act”) when he was allegedly denied equal access to Sylvan Liquors and Los Jalapenos,
26
a restaurant within the liquor store. The parties ultimately settled as to an award of injunctive relief
27
and damages, leaving the issue of attorney’s fees and costs for the instant motion.
28

Plaintiff’s counsel alleges that she and her paralegal spent over 84 hours on this matter for

1
2

which they are entitled to compensation. In support, counsel provided a printout from her

3

timekeeping software which provides dates, precise time spent, and a short description of the work

4

performed. Defendant Wagner, the only defendant to oppose the plaintiff’s motion, contests the

5

reasonableness of the number of hours spent. Wagner alleges that the recorded hours are grossly

6

excessive, as indicated by some specific time entries to which she points.
Defendant Soto Mayor asserts that, despite her signing of the consent decree, she is not

7
8

liable for attorney’s fees because her lease expressly relieves her of liability for the ADA violations.

9

Alternatively, she requests that the Court apportion liability for attorney’s fees and litigation

For the Northern District of California

United States District Court

10

expenses such that defendants are not jointly and severally liable.
II.

11
12

1.

ATTORNEY FEES AND LITIGATION EXPENSES

APPLICABLE LAW

13

The ADA provides that “the court . . . in its discretion, may allow the prevailing party . . . a

14

reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. Similarly,

15

the Unruh Act provides that a violator is liable for “any attorney’s fees that may be determined by

16

the court.” Cal. Civil Code § 52(a). “A prevailing party should ordinarily recover attorney’s fees

17

‘unless special circumstances would render such an award unjust.’” Chalmers v. Los Angeles, 796

18

F.2d 1205, 1210 (9th Cir. 1986) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)).

19

In determining a reasonable attorney’s fee, the first step is to calculate a “lodestar” by

20

multiplying the number of hours reasonably expended by a reasonable hourly rate. McGrath v.

21

Cnty. of Nev., 67 F.3d 248, 252 (9th Cir. 1995) (citing Hensley, 461 U.S. 424 (1983)). In evaluating

22

what is a reasonable number of hours, counsel bears the burden of submitting detailed time records

23

justifying the hours claimed to have been expended. Chalmers, 796 F.2d at 1210. This amount may

24

be reduced if the hours are duplicative, excessive, or otherwise unnecessary. Id. In determining

25

what constitutes a reasonable fee, the court should take into account the relevant factors set forth in

26

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). McGrath, 67 F.3d at 252. The

27

twelve Kerr factors are:

28

(1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the
2

preclusion of other employment by the attorney due to acceptance of the case, (5) the
customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed
by the client or the circumstances, (8) the amount involved and the results obtained,
(9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of
the case, (11) the nature and length of the professional relationship with the client,
and (12) awards in similar cases.

1
2
3
4

Kerr, 526 F.2d at 70. Although the lodestar is presumptively reasonable, it may be adjusted

5
6

based on Kerr factors not previously considered in its calculation. McGrath, 67 F.3d at 252.

7

2.

8

DISCUSSION
Defendant Wagner does not dispute that plaintiff is the prevailing party entitled to the full

For the Northern District of California

amount of fees and costs incurred. Nor does she dispute the reasonableness of the hourly rate of

10

United States District Court

9

plaintiff’s counsel and paralegal, $350 per hour and $150 per hour, respectively. The only issue

11

Wagner constests is the reasonableness of the hours expended.

12

A.

Reasonableness of Hours

13

As required, plaintiff’s counsel provided detailed time records in support of her hours

14

claimed to have been expended on this case. Wagner argues that the overall number of hours is

15

inflated and takes issue with several specific entries.

16
17

i.

Preparation of the Complaint

Wagner contends that the first eleven entries, totaling over seven hours, are related to the

18

preparation and filing of the complaint, which was essentially cut-and-pasted from one of dozens of

19

prior cases in which counsel has represented this plaintiff in similar claims of violations of the ADA

20

by local businesses, and thus the hours are excessive. While it is true that a substantial majority of

21

the complaint copies verbatim previous ones filed by counsel on behalf of this plaintiff, Wagner

22

does not contest a specific entry as unnecessary or excessive. Moreover, “preparation of the

23

complaint” included an inspection of the premises, consultation with an inspector, and other

24

legitimate activities toward initiating the action; the seven hours were not spent merely drafting the

25

complaint. Thus, these hours expended are reasonable.

26
27
28

ii.

Motion to Amend

Plaintiff’s counsel recorded 4.62 hours and her paralegal 5.5 hours related to the motion to
amend the complaint. Wagner alleges that this too was excessive. Again, however, she fails to

3

1

point to specific entries which are unnecessary, excessive or duplicative. More importantly, these

2

were hours expended that could have been avoided had the defendants stipulated to allow the

3

plaintiff leave to amend. Instead, Wagner opposed the motion, a hearing was held, and leave to

4

amend was ultimately granted by this Court. Wagner cannot now insist that hours spent supporting

5

a motion she unsuccessfully opposed were unreasonable without providing greater particularity.

6

iii.

Correspondence with Opposing Counsel

7

Wagner alleges that several entries by plaintiff’s counsel between March 8 and June 13, a

8

total of 3.38 hours and described as “correspondence with opposing counsel” should be removed

9

because her attorney, the only “opposing counsel” in the matter, did not correspond with plaintiff’s

For the Northern District of California

United States District Court

10

counsel during this time period. The plaintiff does not provide documentary evidence of this

11

correspondence nor contest the allegations. Thus, these hours are either improperly recorded or

12

duplicative, and therefore they are not reasonable hours for which counsel is entitled to fees.

13
14
15
16
17

iv.

Ms. Soto Mayor

Wagner claims that hours related to Ms. Soto Mayor were not reasonably expended.
However, because she provides no explanation for this conclusion, it is rejected.
v.

Mr. Cole

Plaintiff’s attorney spent some time corresponding and engaging in settlement discussions

18

with an individual, Mr. Cole, whom she mistakenly believed to be an attorney representing

19

defendant Ghimire. The Court agrees with Wagner that it was unreasonable for counsel to expend

20

time corresponding with an individual who was neither an attorney nor a party to the suit. Thus,

21

these hours will not be included in the lodestar.

22
23

vi.

Defendant Reed

One entry describes dismissing a defendant Reed. However, because there is no Reed who

24

is a party to this case and the plaintiff does not explain the discrepancy, this entry will also be

25

excluded from the lodestar.

26

vii.

Things Not Readily Identifiable as Related to this Case

27

Wagner also contends that numerous entries should be excluded because the descriptions are

28

not readily identifiable as related to this case. While that may be true, the only example provided is

4

1

readily identifiable as related to this case. Wagner points to counsel’s entries on April 25, 2013

2

described as “Preparation of the request for filing” and “Communication from court: Proposed

3

Order Re: Plaintiff’s Request for Administrative Relief to Amend Dates Set by the Court’s

4

Scheduling Order.” The docket for this case indicates that the plaintiff did in fact file such a request

5

with the court on this exact date. Thus, these entries are readily identifiable as related to this case,

6

and the hours expended are reasonable.

7

B.

8

Although Wagner does not invoke the Kerr factors in arguing that the fee requested by the

9

Kerr Factors and Adjustment to the Lodestar

plaintiff is unreasonably high, the Court finds it appropriate to do so to determine whether the

For the Northern District of California

United States District Court

10

lodestar should be adjusted. Only those factors that have not previously been considered in

11

calculating the lodestar may be considered at this point. McGrath, 67 F.3d at 252. Thus, the Court

12

will address: (2) the novelty and difficulty of the questions involved; (4) the preclusion of other

13

employment of the attorney due to the acceptance of the case; (7) time limitations imposed by the

14

client or the circumstances; (10) the “undesirability of the case”; and (11) the nature and length of

15

the professional relationship with the client.1
Ms. Moore, counsel for plaintiff, has been practicing law for over thirteen years and has

16
17

specialized in ADA access litigation for four years. This expertise cuts both ways: while it certainly

18

entitles her to a high hourly rate, it also creates an expectation of efficiency. For example, having

19

several years of experience in ADA access litigation allows her to rely on past complaints that raise

20

identical issues of law, as she has done here, rather than draft pleadings from scratch.

21

At the hearing, Ms. Moore admitted that this case presented no novel or difficult questions,

22

and that the time expended was primarily due to the lack of responsiveness of the defendants. She

23

maintained that this unnecessary delay caused her to miss out on “lots” of other employment

24

opportunities. Although the time from filing of the complaint to the hearing on the instant motion is

25

long relative to the amount of docket activity, it does not appear that any time limitations were

26

1

27
28

The other factors have already been addressed in calculating the lodestar. (1) Time and labor
required goes to the reasonable hours component. (3) The skill requisite to perform the legal service
properly, (5) the customary fee, (6) whether the fee is fixed or contingent, (9) the experience,
reputation, and ability of the attorneys, and (12) awards in similar cases were all relied upon by
plaintiff in arguing the reasonableness of the fee. (8) The amount involved and the results obtained
is considered in determining whether plaintiff was the prevailing party.
5

1

imposed by the client or the circumstances such that the plaintiff or his council was prejudiced by

2

the delay. Furthermore, there is no reason to believe that this case was in any way “undesirable,”

3

particularly given counsel’s longstanding professional relationship with the plaintiff and their

4

history of success. This longstanding relationship, including numerous nearly identical claims,

5

further reinforces the expectation of efficiency.
Thus, all but one of the remaining Kerr factors weigh against the plaintiff, and the Court is

6
7

skeptical about the full extent of the one in plaintiff’s favor. Accordingly, the Court finds that a 20

8

percent reduction in the total lodestar is appropriate to reach a reasonable fee. See Doran v. Corte

9

Madera Inn Best Western, 360 F. Supp. 2d 1057, 1064 (N.D. Cal. 2005) (reducing lodestar by 50%

For the Northern District of California

United States District Court

10

where all but one of the Kerr factors not subsumed in the lodestar weighed against plaintiff).

11

C.

Lodestar Calculation

12

Plaintiff’s counsel recorded 47.75 hours at a rate of $350 per hour. However, the Court will

13

subtract 3.38 hours for “Correspondence with counsel” and .51 hours for entries dealing solely with

14

correspondence with Mr. Cole. Thus, counsel’s total reasonable hours are 43.86, multiplied by $350

15

for a total of $15,351.
Plaintiff’s paralegal recorded 36.58 hours at a rate of $150 per hour. Her hours are reduced

16
17

by .25 hours related to defendant Reed. Thus her reasonable hours, 36.33, times her reasonable rate

18

of $150 totals $5,449.50.
Together, plaintiff’s total lodestar is $20,800.50. However, upon consideration of the Kerr

19
20

factors, that number is to be reduced by 20 percent, for a total of $16,640.40.

21

D.

Litigation Expenses

22

The plaintiff also claims $875 for consultation with a certified access specialist. This

23

amount was uncontested by defendants and is considered reasonable by the Court.

24

3.

Conclusion
Plaintiff is awarded fees and costs in the amount of $17,515.40.

25

II.

26
27

1.

APPORTIONMENT

Liability Under the Lease

28

6

Defendant Soto Mayor claims that she is not liable for attorney’s fees and litigation costs

1
2

because her lease allocated responsibility for compliance with the ADA to the landlord and lessors.

3

However, the ADA provides that both landlords and tenants are liable for violations. 42 U.S.C. §

4

12182(a); 28 C.F.R. § 36.201(b). While they may allocate responsibility for complying with the

5

ADA in a lease, the agreement is only effective as between the parties to the agreement and cannot

6

limit the rights of third parties. 28 C.F.R. § 36.201(b); Botosan v. Paul McNally Realty, 216 F.3d

7

827, 833 (9th Cir. 2000). Thus, Soto Mayor, as the tenant and operator of a place a public

8

accommodation, is liable under the ADA regardless of any provision in her lease stating otherwise.

9

Soto Mayor argues that Botosan is not applicable because it held only that a landlord could

For the Northern District of California

United States District Court

10

not insulate itself from liability by allocating responsibility to a tenant. She asserts that the court

11

should instead follow Kohler v. Bed Bath & Beyond of California, which held that a tenant was not

12

liable under the ADA for an area under the exclusive control of the landlord. No. 11-4451, 2012

13

WL 3018320 (C.D. Cal.). Similarly, here, her landlord and sublessor had exclusive control of the

14

premises pursuant to the lease, and thus she is not liable. The Court disagrees. In Kohler, the court

15

held that the tenant was not liable for violations occurring in the common area parking lot because

16

the tenant’s lack of control meant it was not leasing the area. Id. The court did not hold that the

17

tenant could avoid liability for violations in an area that it was leasing. See id. Here, at least one of

18

the alleged violations of the ADA occurred within Los Jalapenos restaurant,2 the area of the subject

19

property that the defendant specifically leased and operated, even if she did not have authority to

20

make physical alterations. Thus, she is liable under the ADA for violations occurring within Los

21

Jalapenos, regardless of the allocation of responsibility under her lease. Accordingly, having signed

22

the consent decree, Soto Mayor is liable for attorney’s fees and litigation expenses.

23

2.

Apportionment
Alternatively, Soto Mayor argues that if her lease does not void her liability under the ADA,

24
25

then the Court should equitably apportion her liability rather than hold all defendants jointly and

26

severally liable.

27
28
2

In the complaint, plaintiff alleged that the restaurant did not provide an accessible table.
7

Courts have consistently held that landlord and tenants are jointly and severally liable for

1
2

violations of the ADA and accordingly are jointly and severally liable for attorney’s fees. See, e.g.,

3

Blackwell v. Foley, 724 F. Supp. 2d 1068, 1075 (N.D. Cal. 2010) (“[A]ll Defendants signed the

4

Consent Decree; and all are jointly and severally responsible for Plaintiff’s attorney fees.”)

5

However, in other civil rights cases, the Ninth Circuit has held that apportionment of liability for

6

attorney’s fees is warranted. See Sable Communications of California v. Pacific Telephone &

7

Telegraph, 890 F.2d 184 (9th Cir. 1989), Woods v. Graphic Communications, Inc., 925 F.2d 1195,

8

1206 (9th Cir.1991), Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1125-26 (9th

9

Cir.1981). In doing so, it has focused on the considerable disparities in time spent by the plaintiffs’

For the Northern District of California

United States District Court

10

attorneys in pursuing the claims against each defendant. See Sable Communications, 890 F.2d at

11

194 (holding that fees should be apportioned where one defendant intervened late in the case);

12

Southeast Legal Defense Group, 925 F.2d at 1125-26 (ordering the defendants to pay only 75% of

13

the total fees where it determined that roughly 75% of plaintiff’s work was attributable to the

14

defendants, and the other defendant, the federal government, was immune).

15

Here, however, Soto Mayor has not demonstrated that such a grossly unequal amount of the

16

plaintiff’s time was attributable to her that apportionment is warranted. Thus, this Court will abide

17

by the general rule and hold that the defendants are jointly and severally liable for attorney’s fees

18

and litigation expenses.

19

III.

CONCLUSION

20

All defendants are jointly and severally liable for fees and costs in the amount of $17,515.40.

21

IT IS SO ORDERED.

22
23

Dated: September 25, 2013
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28

8

1

C 12-04687 HRL Notice will be electronically mailed to:

2

Kenneth Randolph Moore [e-mail], [e-mail],
[e-mail]

3
Mark Steven Carlquist

[e-mail], [e-mail]

4
Steven Benjamin Solomon

[e-mail]

5
6

Tanya Eugene Moore [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

7

C 12-04687 HRL Notice will be mailed to:

8

Lorena Soto Mayor DeFlores
1921 California Street
#8
Mountain View, CA 94040

9

For the Northern District of California

United States District Court

10
11

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

9