Antoninetti et al v. Chipotle Mexican Grill, Inc. et al
Filing
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ORDER granting in part and denying in part #183 Plaintiffs' Motion for Attorneys' Fees. The Clerk of Court shall enter judgment as to fees, costs, and expenses totaling $337,752.27. (This award includes $317,927.50 in attorneys' fees and $19,824.77 in costs.) As no issues remain, the Clerk of Court shall close the docket of this case. Signed by Judge Barry Ted Moskowitz on 9-29-2014. (cjb) (rlu).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MAURIZIO ANTONINETTI, JEAN
RIKER, JAMES PERKINS, KAREN
FRIEDMAN JAY RIFKIN, SUSAN
CHANDLER, LAURA WILLIAMS,
on behalf of themselves and all others
similarly situated,
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ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES & COSTS
Plaintiff,
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Case No. 06-CV-02671-BTM-JLB
v.
CHIPOTLE MEXICAN GRILL, INC.,
a Delaware Corporation, and DOES 1
– 10, Inclusive,
Defendants.
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On December 2, 2013, Plaintiffs filed a motion seeking attorneys’ fees and
costs of $1,671,197.27, plus fees incurred in litigating this motion. (Docs. 183, 207.)
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For the reasons set forth below, Plaintiffs’ motion for attorneys’ fees and costs is
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hereby GRANTED in part and DENIED in part.
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I. BACKGROUND
The parties are familiar with the facts of the case.1 Due to the unique
procedural posture of this motion, however, it bears noting that:
1. Maurizio Antoninetti filed a lawsuit against Defendant in August 2005.
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Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. In that case, Mr.
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Antoninetti alleged injury arising from visits to two of Defendant’s restaurants whose
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serving area layout violated the Americans With Disabilities Act (“ADA”) as well as
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California’s disability access laws.
2. This case was filed on December 6, 2006, as a six-count class action
alleging the same facts. Antoninetti et. al. v. Chipotle Mexican Grill, Inc., No. 06-cv-
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2671. Discovery in the two pending cases proceeded jointly.
3. On May 7, 2008, in the Central District of California, a second class action
was filed by plaintiffs residing outside of this district who were represented by the
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same counsel as those litigating here: Perkins et. al. v. Chipotle Mexican Grill, Inc.,
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No. 08-cv-3002. The Compliant and Second Amended Complaint similarly alleged
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violations of the ADA as well as California’s Unruh Civil Rights Act, Cal. Civ. Code
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§§ 51, et seq.
4. After granting partial summary judgment and holding a bench trial, Mr.
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For a factual summary, see Antoninetti v. Chipotle Mexican Grill, 643 F.3d
1165, 1169-71 (9th Cir. 2010). See also “Order re Plaintiff’s Motions for Summary
27 Judgment and for Attorneys’ Fees,” No. 05-1660, March 21, 2012 (Doc. 359.); “Order
on Attorneys’ Fees,” No. 05-1660, July 17, 2012 (Doc. 377) (awarding $545,079.05
28 in fees and costs); “Order Denying Class Certification,” No. 06-2671, August 28, 2012
(Doc. 145).
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Antoninetti prevailed in part in the individual action, but was not granted injunctive
relief because the Court found that Chipotle’s “Customers With Disabilities Policy,”
as amended in 2007, brought it into compliance with the ADA.
5. Mr. Antoninetti appealed that judgment. Both putative class actions were
stayed pending the appeal. On July 26, 2010, Mr. Antoninetti prevailed, and the
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Ninth Circuit Court of Appeals remanded the case with instructions “to enter a
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judgment that Chipotle violated the Disabilities Act and to issue appropriate
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injunctive relief.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1177
(9th Cir. 2010).
6. The stay of the Antoninetti putative class action was lifted on August 28,
2010. The stay in the Perkins case remained in place until a settlement was reached.
7. Mr. Antoninetti died on May 9, 2011. The Court granted Mrs. Antoninetti’s
unopposed motion to substitute as the plaintiff in this case.
8. Class certification was denied. The parties thereafter negotiated a global
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settlement of the individual claims in this class action, in the Perkins class action,
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and in fifteen additional individual suits, all of which were consolidated before this
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Court. More specifically, the individual plaintiffs in state court cases were added to
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the Antoninetti class action, and the Perkins case was transferred and consolidated
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with Antoninetti on December 3, 2013. (Order Consolidating Cases, No. 06-2671,
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December 3, 2013 (Doc. 187).)
9. Under the global settlement agreement, Chipotle Mexican Grill, Inc.
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(“Chipotle” or “Defendant”) agreed to pay Plaintiffs’ reasonable attorneys’ fees and
costs in all of these related cases. (Doc. 182, Ex. A ¶¶ 2.1.C.1, 2.1.C.6.)
10. As of July 2011, none of the Chipotle locations in California had the type
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of wall that formed the basis for these suits.
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11. The twenty-one named plaintiffs collectively recovered $225,000 in
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damages for their individual claims.
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12. On July 17, 2012, the Court amended a prior judgment in the invidivual
Antoninetti case, awarding $545,079.05 in attorneys fees and costs. (No. 05-cv-
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1660, Doc. 377.) That amount accounted for time and expenses spent litigating the
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individual Antoninetti case, including time spent opposing certiorari to the Supreme
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Court, and time spent on remand through the date of the award. On December 26,
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2012, the plaintiff was awarded an additional $353,469.95 for fees and costs related
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to proceedings before the Ninth Circuit. (No. 05-cv-1660, Doc. 382.) Thus, counsel
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has already been awarded $898,549 in fees and expenses related to these cases.
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13. The pending motion addresses only heretofore uncompensated fees and
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costs for work on the putative class actions pursuant to the settlement agreement.
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II. LEGAL STANDARDS
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Under 42 U.S.C. § 12205, the “prevailing party” in an Americans with
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Disabilities Act (“ADA”) action may, in the Court’s discretion, recover “reasonable
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attorney’s fees, including litigation expenses, and costs.” See also 28 C.F.R. §
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36.505. The prevailing plaintiff is also entitled to fees and costs under California's
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applicable disability access laws. See Cal. Civ. Code §§ 52(a). The amount of the
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prevailing party’s reasonable attorneys’ fees is calculated using the lodestar method.
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Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the
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lodestar method, “[t]he most useful starting point for determining the amount of a
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reasonable fee is the number of hours reasonably expended on the litigation
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multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
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(1983). Hours that are excessive, redundant, or otherwise unnecessary should be
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excluded from an award of fees. Id. at 434; Camacho v. Bridgeport Financial, Inc.,
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523 F.3d 973, 978 (9th Cir. 2008). To calculate the “lodestar,” the court multiplies
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the number of hours the prevailing party reasonably expended on the litigation by a
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reasonable rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996).
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The hourly rates to be employed in calculating reasonable fees are determined by the
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“prevailing market rates in the relevant community, regardless of whether the
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plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S.
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886, 895 (1984); see also Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001).
"The burden is on the plaintiff to produce evidence that the requested rates are in line
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with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation." Id. (internal quotations omitted).
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"Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in
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the community, and rate determinations in other cases, particularly those setting a
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rate for the attorney, are satisfactory evidence of the prevailing market rate." United
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Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
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Generally, the relevant community "is the forum in which the district court sits."
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Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The relevant rates in that
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community are those charged "for similar services by lawyers of reasonably
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comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895
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n.11 (1984). "The defendant may introduce rebuttal evidence in support of a lower
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hourly rate." Sorenson, 239 F.3d at 1145. As to the number of hours reasonably
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expended, a fee applicant “should make a good-faith effort to exclude . . . hours that
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are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. The
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movant bears the burden of submitting detailed time records justifying the hours
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claimed to have been expended. Id. at 437; In re Washington Public Power Supply
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Sys. Secs. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994).
There is a strong presumption that the lodestar figure represents a reasonable
fee award. Harris v Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994); United Steelworkers,
896 F.2d at 407 (holding that, absent competent rebuttal evidence or a finding that
counsels' rates are unwarranted by their level of performance, the requested rates are
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presumed reasonable); Stonebrae L.P. v. Toll Bros., 521 Fed. Appx. 592, 595 (9th
Cir. 2013) (“Where, as here, a party achieves an excellent result, the court should
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refuse to reduce the lodestar amount.”). Yet courts may adjust the lodestar figure
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upward or downward based upon the factors enunciated in Kerr v. Screen Extras
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Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the
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novelty and difficulty of the questions involved, (3) the skill requisite to perform the
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legal service properly, (4) the preclusion of other employment by the attorney due to
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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
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amount involved and the results obtained, (9) the experience, reputation, and ability
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of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of
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the professional relationship with the client, and (12) awards in similar cases. See
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Camacho, 523 F.3d at 978; Cunningham v. Los Angeles, 879 F.2d 481, 484 (9th Cir.
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1988) (same). See also Woods v. Sunn, 865 F.2d 982, 991 (9th Cir. 1988) (noting
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that many factors previously identified by courts as probative on the issue of
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reasonableness of a fee award are now subsumed within the initial calculation of the
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lodestar amount); Morales, 96 F.3d at 363-64. Generally, the most important factor
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is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 115-16 (1992). Finally,
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the Court may make across-the-board percentage cuts in the number of hours claimed
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as “a practical means of trimming the fat from a fee application.” Gates v.
Deukmejian, 977 F.2d 1300, 1307 (9th Cir. 1992) (citation omitted).
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III. DISCUSSION
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A.
Evidentiary Issues
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To call the record with respect to this motion voluminous would be an
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understatement. Plaintiffs’ motion is accompanied by ten supporting declarations
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and a request for judicial notice. Defendant’s opposition is supported by two
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declarations and is accompanied by 75 objections to Plaintiffs’ evidence as well as
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opposition to Plaintiffs’ requests for judicial notice. (Doc. 189.) Plaintiffs have filed
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objections to each of Defendant’s declarations as well. (Docs. 192-4, 192-5.)
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Defendant’s objections to Plaintiff’s supporting declarations (Docs. 189-9 to 189-15)
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prompted over a dozen separate replies from Plaintiffs (Docs. 192-207). As a
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preliminary matter, the Court addresses these requests and objections.
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1. Requests for Judicial Notice & Objections to Expert Declarations
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Plaintiffs ask the Court to take notice, pursuant to Rule 201(b) of the Federal
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Rules of Evidence, of seven exhibits consisting of documents filed in the related
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individual action, Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. (Doc.
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183-6.) Rule 201 provides an avenue for the Court to take judicial notice of
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reasonably indisputable adjudicative facts. It is not typically a mechanism for
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acknowledging the content of filings in other proceedings, however. M/V American
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Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (“As
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a general rule, a court may not take judicial notice of proceedings or records in
another cause so as to supply, without formal introduction of evidence, facts essential
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to support a contention in a cause then before it.”). The Court therefore takes notice
that the individual Antoninetti proceeding exists and that these documents are filed in
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the docket of that case (No. 05-cv-1660-BTM-WVC). See generally U.S. ex rel
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Robinson Rahcheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
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1992) (“[W]e ‘may take notice of proceedings in other courts, both within and
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without the federal judicial system, if those proceedings have direct relation to
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matters at issue.’”); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank,
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136 F.3d 1360, 1364 (9th Cir. 1998); Recent Past Pres. Network v. Latschar, 701 F.
Supp. 2d 49, 55 (D.D.C. 2010).
Plaintiffs’ request encompasses three “expert declarations” of Richard Pearl.
(Doc. 183, Exs. 4, 5, 6.) As Defendant points out, the Court cannot consider the
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substance of the declarations as evidence by taking judicial notice of their filing in
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another case. Baker v. Cal. Dep’t of Corrections, 484 F. App’x 130, 132 (9th Cir.
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2012). Rule 702 provides the proper avenue for the admission of such declarations.2
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For example, in Stonebrae, L.P. v. Toll Bros., No. 08-221, 2011 U.S. Dist. LEXIS
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39832, 9-12 (N.D. Cal. Apr. 7, 2011), a case wherein Mr. Pearl provided an expert
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declaration (and references here), his declaration was admitted as expert testimony
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Under Rule 702, a witness qualified as an expert in "scientific" knowledge may
testify thereto if: "(1) the testimony is based upon sufficient facts or data; (2) the
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applied the principles and methods to the facts of the case." Fed. R. Evid. 702. In
27 response to an objection, the Court conducts a preliminary assessment to ensure, in
essence, that the expert’s analysis amounts to “good science.” Daubert v. Merrell Dow
28 Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II") (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)); Kennedy v. Collagen Corp.,
161 F.3d 1226, 1228 (9th Cir. 1998).
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under Rule 702. Although Defendant objects to the relevancy of some data Mr. Pearl
relies upon, the Court finds, based in part upon Plaintiffs’ response (Doc. 193-1), that
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Mr. Pearl’s declarations satisfy the threshold requirements. See generally Levi
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Strauss v. Abercrombie & Fitch Trading Co., 2008 U.S. Dist. LEXIS 87625, *22
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(N.D. Cal. Oct. 16, 2008) (noting that, so long as the data are reliable,
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methodological deficiencies go to "the weight to be accorded the survey, rather than
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its admissibility.") (citing Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir.
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1997)). The Court likewise finds that the Declaration of William M. Hensley
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(“Hensley Decl.”) satisfies Rule 702 and overrules Plaintiffs’ general objections
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thereto (Doc. 192-5 at 1-3).
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2. Objections to Timekeeper & Billing Records
Defendant objects, inter alia, to Exhibits 13, 14, 15, and 16 to the Declaration
of Amy B. Vandeveld (Doc. 185) (“Vandeveld Decl.”). Ms. Vandeveld asserts that
Exhibit 13 evidences costs and litigation expenses incurred in the individual actions
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as well as the class actions, and that she advanced these costs. (Vandeveld Decl.
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¶45.) She states that Exhibit 14 is “[m]y billing statement for the Antoninetti class
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action . . . . To the best of my knowledge, the billing statement accurately reflects
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the time I invested, and the costs and expenses incurred, in that case.” (Id. ¶46.) So
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too with Exhibit 15 (Perkins class action) and Exhibit 16 (Antoninetti individual
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cases). (Id. ¶¶47, 48.) Finally, Plaintiffs’ attorneys state that their billing records are
based upon “contemporaneously kept timesheets.” (Amy Vandeveld Reply Decl.,
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Doc. 192-2 at 33; Thomas Vandeveld Reply Decl. ¶3., Doc. 192-1.) The Court finds
that these statements, paired with the affirmation under penalty of perjury, are
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sufficient to satisfy the personal knowledge and authentication requirements of Rules
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602 and 901, and overrules the objections. The hearsay objections are also
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overruled, as deficiencies in the movants’ filings were cured by their reply
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declarations such that the billing records fall within the business records exception to
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the hearsay rule. See Davis v. City of San Francisco, 976 F.2d 1536, 1542 (9th Cir.
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1992); New Eng. Tech., Inc. v. Sigma Tech Sales, Inc., 2010 U.S. Dist. LEXIS
111102 (S.D. Fla. 2010).
3. Remaining Objections
The parties raise numerous other objections based on rules 402, 403, 602, 802,
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901, and 1002 of the Federal Rules of Evidence. The parties identify no real
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prejudice as to admissibility, nor do they cite any authority sustaining, e.g., a Rule
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403 objection in the context of a motion for fees and costs. The Court overrules the
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objections to Mr. Pearl’s declarations as well as Mr. Hensley’s declaration because
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an expert witness may rely upon otherwise inadmissible evidence as a basis for an
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expert opinion if it is reasonable for an expert in the field to do so. See Fed. R. Evid.
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703; see also Fed. R. Evid. 1004. The Court need not expressly reach the remaining
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objections because they pertain to materials it does not rely upon in reaching its
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decision. Cf. SEC v. Pattison, No. 08-4238, 2011 U.S. Dist. LEXIS 22398 (N.D.
Cal. Feb. 22, 2011) (declining to exercise discretion to strike, “since the declaration
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is not completely devoid of relevant factual statements, the undersigned is capable of
parsing through it, and the SEC has not identified any prejudice.”).
B.
Reasonable Hourly Rate
Plaintiffs’ award request is based upon hourly rates of $525 and $620 for Mr.
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and Ms. Vandeveld, respectively. The Court specifically addressed the proper hourly
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rate for Ms. Vandeveld in its July 17, 2012 Order in the individual Antoninetti case,
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finding $400 to be an appropriate rate. (No. 05-1660, Doc. 377 at 10-11.) The Court
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factored in her expertise and success on appeal, and included an upward adjustment
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for the contingency nature of the fee and the extended litigation period. Due to the
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overlapping work and substantial similarity between the parties, the claims, and the
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attorneys involved—each is virtually identical at all relevant times—the Court adopts
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its prior analysis here.3 The Court finds the same hourly rate is reasonable for Mr.
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Vandeveld.
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The Court finds insufficient evidence that there was an intervening change in
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the local prevailing rate for disability litigation services (aside from an increase
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attributable to inflation) during the relevant period. The Court will, however, adjust
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the recoverable rate to account for inflation. Mr. Pearl and Mr. Hensley agree that
there has been an increase, apparently attributable to inflation, in hourly rates. See
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As Plaintiffs emphasize, the Ninth Circuit awarded the requested rate of $475$500/hr for the same attorneys involved in the appeal of the individual Antoninetti case.
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There, however, Defendant failed to introduce rebuttal evidence as to the requested
28 rates, depriving the panel of the benefit of Mr. Hensley’s affidavit. (No. 05-1660, Doc.
382 at 14.) With respect to the pending motion, by contrast, Mr. Hensley’s opinion is
properly before the Court.
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Hensley Decl. ¶¶10, 13, 14B, 18 (opining that the prevailing local hourly rate for
ADA work is in the range of $375 to $425). The Court will increase the awarded
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rate by five percent. This bump is based upon Mr. Pearl’s estimate of a 5.1%
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increase in 2011. (Pearl Decl., Ex. B). The Court will accordingly calculate the
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lodestar using hourly rates of $420 for Plaintiffs’ counsel. The Court finds that
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Plaintiffs’ requested rated of $125 per hour for time spent on tasks typically
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performed by a paralegal to be reasonable.
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C.
Time
During the time period at issue, the parties engaged in negotiations and motion
practice before this Court. Plaintiffs’ counsel also identified and reached out to the
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named plaintiffs. Plaintiffs submit declarations of Amy Vandeveld (“A.V. Decl.”),
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lead counsel, and Thomas Vandeveld (“T.V. Decl.”) as evidence of the time worked
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on this case and costs incurred. (Doc. 184.) Defendants submit the declaration of
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their lead counsel, David R. Sugden (“Sugden Decl.”), and the declaration of their
expert, William M. Hensley (“Hensley Decl.”), in opposition to Plaintiffs’ request.
Plaintiffs’ counsel seeks compensation for 2,033.2 hours of work—494.4
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expended by Thomas Vandeveld, and 1,538.8 by Amy Vandeveld. (T.V. Decl., Ex.
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8; A.V. Decl., Exs. 14-16; T.V. Supp. Decl., Ex. 1.) Defendant accuses Plaintiffs’
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counsel of treating this case as a “cash cow,” “milking it” for fees. See generally
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Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756, 759 (S.D.W.Va. 2009)
("[W]hen the lodestar method is applied, class counsel has an incentive to
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“over-litigate” or draw out cases in an effort to increase the number of hours used to
calculate their fees."). The Court may apply an across-the-board “haircut” to “trim
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the fat” where, as here, the requested award is excessive. Moreno v. City of
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Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (a "district court can impose a
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small reduction, no greater than 10 percent — a "haircut" — based on its exercise of
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discretion and without a more specific explanation"). Defendant, however, asks the
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Court to apply much deeper cuts. Specifically, Mr. Hensley contends that the Court
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should strike 75% of that time (before applying a further 60% reduction) due to, e.g.,
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needless litigation, duplicative billing, excessive research time, insufficient
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supporting records, and inefficiency. (See, e.g., Hensley Decl. ¶30.) Mindful of
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these arguments as well as the unusual procedural posture and parallel litigation
across three cases here, the Court turns to the record.
1. Unreasonable or Unnecessary Litigation
The parties vigorously dispute whether time was reasonably spent litigating
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the terms of injunctive relief after the Ninth Circuit mandate in the individual
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Antoninetti case. The parties argued this point before the Court on November 16,
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2010, and the Court expressed skepticism as to Plaintiffs’ purported need to secure
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an admission of liability and declaratory relief. (Sugden Decl., Ex. A 18:19-21, 21:8-
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9, 23:21-24, 24:4-11.) On January 13, 2011, Defendant’s counsel confirmed that
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Chipotle’s Encinitas and Pacific Beach locations had lowered their walls in January
2009. (Sugden Decl., Ex. R.) Mr. Sugden also proposed a stipulated injunction,
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though it was not entirely clear what the scope of that proposal was at the time. On
July 3, 2012, the parties again argued the point before the Court at a hearing on fees
in the individual Antoninetii case. (Sugden Decl., Ex. B 50-55.)
Plaintiffs moved for class certification on April 18, 2011, arguing that a
statewide class was appropriate. (Doc. 88.) On August 28, 2012, the Court denied
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that motion, finding that the claim for injunctive relief was moot (even after
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considering the voluntary cessation exception) in light of the Ninth Circuit ruling, the
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failure to establish the presence of a high counter wall in any California Chipotle
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since 2009, and Defendant’s evidence that no Chipotle in the state had counter walls
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over 36 inches. (Doc. 145.) The Court also rejected Plaintiffs’ argument that their
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claims for declaratory relief were not moot, because Chipotle had been held in
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violation of the ADA by the Ninth Circuit and was collaterally estopped from re-
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litigating the issue. (Id. at 5.)
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Defendant avers that Plaintiffs’ counsel knew that the offending condition at
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the Pacific Beach and Encinitas restaurants had been remedied by July 2010, when
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the Ninth Circuit remanded the individual Antoninetti case with instructions to enter
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an injunction. (Opp’n at 6-7.) For this reason, Defendant argues that the Court
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should disallow recovery for time spent after July 2010. It appears that Defendant’s
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counsel informed Ms. Vandeveld of the remedial actions on August 9, 2010. (A.V.
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Decl. ¶¶28, 38.) Defendant has also shown that, by January 2011, each
representative plaintiff in the class actions had seen for themselves that the walls at
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been lowered at the restaurants they had visited. (Opp’n 7-8.)
Yet Plaintiffs’ counsel had more work to do on the putative class actions
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following remand of the individual Antoninetti case. As Plaintiffs point out, the
5
scope of Defendant’s remedial actions was uncertain or unconfirmed through early
6
7
2011. And in addition to negotiating a settlement as to damages, Plaintiffs’ counsel
8
had to confirm that the offending condition was remedied at the relevant locations,
9
and was unlikely to recur, before accepting a stipulated settlement and dropping the
10
11
case. The Court will accordingly exclude hours for time wasted litigating these
12
issues, but not going all the way back to July 2010. Rather, it will credit reasonable
13
time spent pursuing class certification, declaratory relief, and injunctive relief
14
15
through January 18, 2011,4 when it should have been clear that further pursuit of
16
injunctive relief and class certification was fruitless because Defendant had
17
confirmed relief as to two locations at issue as of that time. Although Defendant did
18
19
20
21
22
23
not provide confirmation as to all of its California restaurants at that time, the Court
is skeptical of the time spent belaboring these points thereafter.
Upon review of the billing statements, the Court finds that, with the partial
exception of time spent on class certification issues, there is no clear way to reliably
24
parse out different claims or litigation activities, e.g., pursuit of injunctive or
25
declaratory relief as opposed to damages. The billing records indicate that Ms.
26
27
4
28
The email from Defendant’s counsel concerning the remedial measures was sent on
January 13, 2011, and Ms. Vandeveld’s invoice reflects that she reviewed the attached
document on January 18, 2011.
16
06-CV-02671
1
2
3
Vandeveld spent over 242 hours on class certification issues (and a related motion
for reconsideration) separate and apart from other work for the individual plaintiffs
4
(this figure does not include time spent on discovery, depositions, or preparing
5
declarations). Some 194.8 of those hours were spent working on class certification
6
7
issues between January 18, 2011 and January 14, 2013. Mr. Vandeveld also spent at
8
least 91.4 hours just on class certification issues, 62.4 of which were between
9
January 18, 2011 and June 21, 2013.
10
11
Mr. Hensley suggests that the Court exclude 179.1 hours of Mr. Vandeveld’s
12
time and 228.1 hours of Ms. Vandeveld’s time for unnecessary work or excessive
13
time generally, and with respect to class certification in particular. (See Hensley
14
15
Decl. ¶¶28E, 30D.) Upon review of the billing records, the Court agrees in part with
16
Mr. Henley’s recommendation and finds it appropriate to exclude time on that basis.
17
More specifically, the Court finds that time spent on class certification after January
18
19
18, 2011 was excessive and unnecessary. The Court accordingly excludes the
20
following time spent on class certification from the lodestar: 194.8 of Ms.
21
Vandeveld’s hours and 62.4 of Mr. Vandeveld’s hours. The Court finds the
22
23
remaining time (approximately 77 hours) spent on class certification to be reasonable
24
and includes it in the lodestar.
25
2. Fees on Fees
26
27
28
Reasonable fees and costs associated with the pursuit of attorneys’ fees are
generally recoverable. McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir.
17
06-CV-02671
1
2
3
1995). Plaintiffs request compensation for over 265 hours spent on the pending
motion. Mr. Vandeveld’s billing report reflects some 59.6 hours spent on the
4
motion, including preparing the moving papers. In a supplemental declaration, Mr.
5
Vandeveld states that he spent an additional 75.5 hours responding to hundreds of
6
7
pages filed in opposition to the motion. (T.V. Supp. Decl. (Doc. 207) ¶2.) Ms.
8
Vandeveld billed 132 hours at a paralegal rate of $125 per hour for time spent
9
preparing papers, e.g., billing records, related to the pending motion. Relying on the
10
11
12
13
14
15
opinion of Mr. Hensley, Chipotle argues that this amount of time is unreasonable
because, e.g., previous fees motions could have been used as templates.
Even factoring in the need to respond to objections, this amount of time is
beyond the pale, especially at Mr. Vandeveld’s rate. See Doran v. Disability Rights
16
Enforcement Educ. Servs., 360 F. Supp. 2d 1057, 1062 (N.D. Cal. 2005) (reducing
17
award for time spent on fee application where “many of the[] same tasks could have
18
19
been achieved by referring to previous cases”). Ms. Vandeveld billed at least 125.8
20
paralegal hours preparing billing statements from September to November 2013.
21
This involved transferring information from timesheets into billing software and
22
23
“cross-checking files to ensure all time was captured.” (A.V. Reply Decl. at 33, Doc.
24
192-2.) The Court finds much of this work to be duplicative and inefficient, and
25
therefore deducts 35.1 hours from Mr. Vandeveld’s bills and 72 hours from Ms.
26
27
28
Vandeveld’s bill, limiting recovery for time related to the motion sub judice to 100
attorney hours and 60 paralegal hours. The Court believes this provides proper
18
06-CV-02671
1
2
3
compensation while minimizing the incentive to dwell on a fee motion. See
generally Cruz v. Starbucks Corp., 2013 U.S. Dist. LEXIS 79231, 2013 WL
4
2447862, *8 (N.D. Cal. June 5, 2013) (applying a 50% reduction to time spent on fee
5
motion); Hernandez v. Grullense, 2014 U.S. Dist. LEXIS 61020, 2014 WL 1724356,
6
7
*13-14 (N.D. Cal. Apr. 30, 2014) (applying a reduction of over 60% to time spent
8
preparing a fee motion); Rodriguez v. Barrita, Inc., 2014 U.S. Dist. LEXIS 90021,
9
*25 (N.D. Cal. July 1, 2014) (limiting recovery for fees on fees in disability access
10
11
case to 98.5 combined attorney and paralegal hours).
12
3. Duplicative and Excessive Billing
13
Counsel should exercise billing judgment in a good faith effort to exclude
14
15
unnecessary time from a fee application. Hensley, 431 U.S. at 437. See also
16
Rosenfeld v. United States DOJ, 903 F. Supp. 2d 859, 877 (N.D. Cal. 2012).
17
Defendant argues that much of the time billed by Plaintiffs’ counsel is duplicative or
18
19
excessive, and that Plaintiffs’ billing records do not indicate any reduction for
20
inefficiency, waste, or duplication of effort. (Some, but not all, of the billing entries
21
Defendant complains of have already been addressed by the Court’s striking of
22
23
unreasonable time spent on class certification, supra.) For example, Mr. Hensley
24
opines, and the Court agrees, that Ms. Vandeveld billed 24.9 hours in 2010 on work
25
related to jurisdiction over Perkins that was duplicative of work performed in the
26
27
28
Antoninetti class action. (A.V. Decl. Ex. 15, 9-11; Hensley Decl. 38-39, ¶30D.)
//
19
06-CV-02671
1
2
3
4. Excessive & Inadequately Documented Conferencing
Defendant contends that Plaintiffs’ billing records reflect an excessive amount
4
of conferencing between Plaintiffs’ counsel as well as with potential witnesses.
5
(Hensley Decl. ¶28C.) The Court agrees that the following entries in Mr.
6
7
Vandeveld’s bill are excessive or inadequately explained: (1) .7 hours on August 20,
8
2010, (2) .4 hours on August 26, 2010 for an uncorroborated call with Ms.
9
Vandeveld, (3) 2.2 hours spent traveling to meet and meeting with Ms. Vandeveld on
10
11
October 1, 2010, which are uncorroborated by her billing entries for that day, and (4)
12
1.2 hours on February 1, 2013 as excessive and uncorroborated. The Court strikes
13
(5) 1.8 hours from Mr. Vandeveld’s bill for October 1, 2010 for time spent traveling
14
15
16
17
18
19
to and attending what was recorded in Ms. Vandeveld’s invoice as a 24 minute
meeting.
5. Administrative/Clerical/Paralegal Tasks
Defendant argues that Plaintiffs’ counsel overbills for time spent providing
20
notice to putative class members. (See, e.g., Hensley Decl. ¶30H.) Some time spent
21
preparing and distributing notices does appear to be excessive, and there is no
22
23
indication that Plaintiffs’ counsel applied billing judgment to reduce their fees in any
24
way. The Court will accordingly adjust the rate for 98.9 hours Amy Vandeveld spent
25
contacting, corresponding with, or gathering basic information from potential
26
27
28
witnesses and class members by assigning that time a paralegal rate of $125 per hour.
See generally Davis v. City of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992),
20
06-CV-02671
1
2
3
vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993) (“It is simply not
reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney
4
employed by her could perform at a much lower cost.”). The Court will also adjust
5
17.3 hours spent communicating notice in July 2013 to the same paralegal rate. An
6
7
8
9
appendix correlating these adjustments to the billing records is appended hereto.
D.
Discretionary Reduction
Each side accuses the other of dragging out settlement negotiations. Mr.
10
11
Hensley also suggests that virtually all of the time Ms. Vandeveld spent on the case
12
from September 6, 2012 to November 1, 2013 was unnecessary. (See Doc. 189-3 at
13
164-171.) The Court declines to exclude settlement activities from the lodestar
14
15
beyond the adjustments made to time spent drafting materials or providing notice.
16
The Court credits most of Plaintiffs’ time spent negotiating a settlement and
17
satisfying notice requirements.
18
19
After applying these exclusions, the lodestar amounts to 1,461.5 attorney hours
20
and 176.2 paralegal hours. A discretionary reduction to the lodestar is one way to
21
address remaining shortcomings in the billing records, e.g., vague timekeeper entries
22
23
that make it difficult to discern how much time was spent needlessly. See In re
24
Smith, 586 F.3d 1169, 1174 (9th Cir. 2009) ("[T]he district court has the authority to
25
make across-the-board percentage cuts . . . in the number of hours claimed . . . as a
26
27
28
practical means of trimming the fat from a fee application.") (citation omitted);
Rosenfeld v. United States DOJ, 903 F. Supp. 2d 859, 877 (N.D. Cal. 2012). To the
21
06-CV-02671
1
2
3
4
extent Defendant requests that the Court apply a further reduction on that basis, the
Court declines to do so.
E.
Lodestar Calculation
5
TABLE 1: HOURLY RATES
6
7
Timekeeper
Hourly Rate Billed Hourly Rate Awarded
8
Amy Vandeveld
$620
$420
9
Thomas Vandeveld
$525
$420
Paralegal
$125
$125
10
11
TABLE 2: TIME
12
13
14
Timekeeper
Time Billed
Reasonable Time
15
1,406.8 hours
1,070.9 hours
16
Amy Vandeveld
(attorney rate)
17
Thomas Vandeveld
494.4 hours
390.6 hours
18
Paralegal
132 hours
176.2 hours
19
TABLE 3: LODESTAR
20
21
Reasonable Reasonable Lodestar
Hours
Hourly Rate
22
23
24
Amy Vandeveld
1,070.9
$420
$449,778
Thomas Vandeveld
390.6
$420
$164,052
Paralegal
176.2
$125
$22,025
25
26
27
LODESTAR
$ 635,855
28
22
06-CV-02671
1
F.
Adjustment to Lodestar
2
3
The Court next considers the Kerr factors to determine whether an adjustment
4
to the lodestar is appropriate.5 Several factors have already been considered in
5
calculating the lodestar, including the requisite skill for this type of legal service, the
6
7
contingent nature of the fee, the customary fee charged in this region for this type of
8
service, the experience and skill of Plaintiffs’ counsel, and awards in similar cases.
9
These factors are not reconsidered in adjusting the lodestar. Hensley, 461 U.S. at
10
11
436-37. The parties have not suggested that there was a relevant time constraint
12
imposed by the clients or the circumstances of the case. The Court accordingly
13
focuses herein on the remaining factors: the amounts involved and the results
14
15
obtained.
16
1. Plaintiffs’ Request for an Upward Multiplier
17
California’s Unruh Civil Rights Act provides for a lodestar “multiplier” where
18
19
the litigation involved a contingent risk or required extraordinary legal skill
20
justifying augmentation of the lodestar to approximate the fair market rate for the
21
services provided. See Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). Although
22
23
the Plaintiff undertook the risk and expense of litigating on a contingent basis over
24
an extended period, the Court has already accounted for that factor in its calculation
25
of the attorneys’ reasonable rate. (See No. 05-1660, Doc. 377 at 10-11, Order
26
5
Defendant does not argue that class certification, injunctive relief, or
declaratory judgment constitute unrelated claims here, and the Court does not treat
28 those failed pursuits as unrelated, unsuccessful claims. See Supler v. Fkaacs, Inc., No.
11-cv-229, 2013 U.S. Dist. LEXIS 178101, *15-16 (W.D.N.C. Dec. 19, 2013).
27
23
06-CV-02671
1
2
3
enhancing hourly rate from $375 to $400 “because of the contingency nature of the
fee and the extended length of the litigation.”) The Court finds no basis for finding
4
that the representation of the individuals in the Perkins action presented “rare and
5
exceptional” factors warranting a further enhancement under California law since it
6
7
resulted in a relatively modest settlement in relation to the time expended and
8
because the success of the individual claims was not legally or procedurally
9
complicated in light of the Ninth Circuit ruling in Antoninetti. See Fisher v. SJB-
10
11
12
13
14
15
P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).
Plaintiffs urge the Court to multiply the loadstar by a factor of 1.5, “which
reflects the time involved, the risk involved, and the outstanding success obtained.”
(Mot. at 9.) According to Plaintiffs, the additional cases formed a catalyst or
16
motivating factor that substantially contributed to Chipotle’s policy change and
17
adjustment of wall heights statewide. Due to the timing of the Ninth Circuit ruling as
18
19
well as Chipotle’s policy change and elimination of the offending counter walls, the
20
Court disagrees. To qualify under a “catalyst” theory, Plaintiffs must establish that
21
their lawsuits (1) motivated the defendant to provide the primary relief sought, and
22
23
(2) had merit and “achieved its catalytic effect by threat of victory, not by dint of
24
nuisance and threat of expense.” Tipton-Whittingham v. City of Los Angeles, 34
25
Cal. 4th 604, 608 (2004).
26
27
28
The Court acknowledges that Plaintiffs successfully obtained $10,000 in
damages for each individual defendant. Beyond that, the Court rejects Plaintiffs’
24
06-CV-02671
1
2
3
argument. Plaintiffs have not demonstrated that the class litigation had a synergystic
effect that yielded better results for the plaintiffs, or any additional nonmonetary
4
relief at all. By their own admission, Plaintiffs’ counsel made a tactical decision that
5
enabled them to test the waters with the individual case while the putative class
6
7
actions were stayed. (See, e.g., Sugden Decl., Ex. B 36:24-37:2 (July 3, 2012 Hr’g
8
Tr.) (“And the other thing . . . that was really important in [the individual Antoninetti]
9
case was the declaratory relief that the plaintiff obtained because that will have an
10
11
impact in the class action case . . . .”) Plaintiffs’ counsel was so successful that they
12
not only reduced the risks associated with class litigation, they effectively eliminated
13
the need for it. Mr. Antoninetti’s win effectively secured the relief sought by the
14
15
putative class members. If Plaintiffs’ counsel had not already been compensated for
16
that feat, the situation would be different. But they have been, and the Court
17
accordingly finds that an enhancement is unwarranted. On this record, any other
18
19
ruling would countenance double-dipping.
20
2. Defendant’s Request for a Downward Multiplier
21
The court should reduce the award if "the relief, however significant, is
22
23
limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at
24
439-40. In considering the extent of the relief obtained, the court "compare[s] the
25
amount of damages sought to the amount awarded." Mercer v. Duke Univ., 401 F.3d
26
27
28
199, 204 (4th Cir. 2005). Chipotle asks the Court to reduce the lodestar by 60%
based on limited success. With respect to the degree of success, the Court considers
25
06-CV-02671
1
2
3
“the significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expended . . . .” McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th
4
Cir. 2009). In evaluating the degree of success, the Court may consider, but is not
5
limited to, the following factors: the amount and nature of claims the Plaintiff
6
7
prevailed on compared to those that were dismissed, the amount of damages awarded
8
compared to the amount sought, the amount of damages awarded relative to the
9
amount of attorney’s fees sought, and whether the suit conferred a benefit on the
10
11
public. See id. at 1104-05; McGinnis v. Kentucky Fried Chicken of California, 51
12
F.3d 805, 810 (9th Cir. 1994). Determining an appropriate reduction of the fee
13
request is not a scientific matter. Skaff v. Le Meridien, 2008 U.S. Dist. LEXIS
14
15
123537, *31-32 (C.D. Cal. Aug. 29, 2008). “Rather, it is a calculation based on
16
experience and good sense in light of the factual record.” Id. See also Schwarz v.
17
Sec'y of Health & Human Servs., 73 F.3d 895, 904-05 (9th Cir. Or. 1995) (affirming
18
19
75% reduction of time based on the success of only one of four claims); Harris v.
20
Marhoefer, 24 F3d 16, 17 (9th Cir. 1994) (affirming 50% reduction based on the
21
number of successful versus unsuccessful claims). For the reasons outlined below,
22
23
24
25
26
27
28
the Court finds that Plaintiffs’ success was limited in relation to the time expended.
Plaintiffs’ initial complaint alleged six counts, including a consumer protection
claim and tort claims that were dropped in 2011. Consequently, the settlement, as
relevant here, is based on the remaining two counts: the ADA and Unruh Act claims.
Plaintiffs sought monetary relief for the named plaintiffs as well as a class of persons
26
06-CV-02671
1
2
3
similarly situated that was estimated to be some 393,000 Californians (allowing for
repeat customers). (Pls.’ Mot. for Class Cert. at 11, Doc. 88-1.) As mentioned
4
supra, the Court denied class certification on those claims. Although Plaintiffs’
5
counsel secured an excellent monetary award with respect to each individual
6
7
plaintiff, the plaintiffs here enjoy no nonmonetary benefit that they did not have
8
following the Ninth Circuit ruling in the individual Antoninetti case. See Betancourt
9
v. Giuliani, 325 F. Supp. 2d 330, 330-31, 335 (S.D.N.Y. 2004) (reducing plaintiff's
10
11
12
13
14
15
attorney fee award where his civil rights class action failed to obtain much relief
sought, including the certification of a class).
While the Antoninetti litigation conferred a benefit on the public, that benefit
arose principally from the work leading to the Ninth Circuit ruling, not from this
16
case. There has been no such nonmonetary success in the cases relevant here. The
17
Court accordingly finds that the putative class actions were only partly successful.
18
19
20
21
22
23
Plaintiffs’ request for fees amounting to over seven times the amount of relief
obtained is thus unwarranted.
In Antoninetti, this Court entered a 25% reduction based upon the failure of
plaintiff’s claim for damages arising from litigation-related visits. (No. 05-1660,
24
Doc. 377 at 6 n.4.) Here, the results are also mixed—the damages claims
25
successfully resulted in $10,000 payouts totaling $225,000, but Plaintiffs dropped
26
27
28
their tort claims in 2011, and their the pursuit of declaratory relief, class certification,
and an injunction failed. Thus, the work performed by Plaintiffs’ counsel in the
27
06-CV-02671
1
2
3
putative class actions failed to obtain relief for any putative class members beyond
those individually named. Because Plaintiffs could have achieved the same result
4
without their post-remand pursuit of class certification, injunctive relief, and a
5
declaratory judgment, a large amount of time spent on the case at issue here was not
6
7
“reasonably necessary to obtain the relief that was ultimately obtained.” Rodriguez,
8
2014 U.S. Dist. LEXIS 90021, *40 (quoting Velez v. Wynne, 220 F. App’x 512, 513
9
(9th Cir. 2007)). For these reasons, the lodestar is excessive relative to the success
10
11
achieved by these plaintiffs, even after striking the excessive time spent on class
12
certification. The Court therefore applies a fifty percent reduction to the lodestar and
13
will enter a total fee award of $317,927.50.6 See Supler, 2013 U.S. Dist. LEXIS
14
15
178101, *15-16 (reducing award by 50% where “the individual plaintiff enjoyed a
16
good deal of success [but] the proposed class did not”); Dodson v. Dollar Tree
17
Stores, Inc., 2006 U.S. Dist. LEXIS 90416, 12-14 (E.D. Cal. Dec. 13, 2006)
18
19
(reducing fee award "by 3/7, or forty three percent, to account for [the plaintiff's]
20
limited success" where he prevailed on four of seven claims "[b]ecause it is
21
impossible to apportion attorneys' fees between the unsuccessful claims from the
22
23
24
25
26
27
28
6
In calculating this reduction, the Court is mindful to avoid double-cutting. See
Cabrales v. Cnty. of Los Angeles, 864 F.2d 1454, 1465 (9th Cir. 1988)
(“Mathematically, it is inconsequential whether the lodestar figure itself is adjusted for
lack of success or whether the reasonable hours component of the lodestar is adjusted
for lack of success. What matters is that the district court did not ‘count’ for lack of
success twice.”). An adjustment is appropriate at both stages of the analysis here
because the billing records present reasonably clear criteria for striking unreasonable
time with respect to class certification (257.2 of over 333 hours) from the lodestar, but
not as to the unsuccessful pursuit of other claims, injunctive relief, or declaratory relief.
28
06-CV-02671
1
2
3
successful claims with any degree of certainty"). See also Coyne v. Reliance Std.
Life Ins. Co., 2003 U.S. Dist. LEXIS 26696 (C.D. Cal. Dec. 16, 2003) (applying a
4
50% reduction for limited success); Zook v. Brown, 865 F.2d 887, 896 (7th Cir.
5
1989) (reducing number of hours by 75% for “limited results”). This amounts to
6
7
over 140% of the $225,000 obtained for Plaintiffs. This adjustment thus reflects that,
8
while counsel achieved excellent results for each individual client, a great deal of
9
time spent litigating the case was out of proportion to the ultimate result and not
10
11
12
13
reasonably necessary to obtain that result. See Velez, 220 F. App’x at 512;
Rodriguez, 2014 U.S. Dist. LEXIS 90021, *44.
G.
Bill of Costs
14
15
Plaintiffs’ request an award of litigation expenses and costs in the amount of
16
$19,824.77. That request is supported by expense reports accompanying the
17
declarations of Plaintiffs’ counsel. Defendant does not oppose this request. The
18
19
20
21
Court accordingly finds the requested amount to be adequately documented and
reasonable under the circumstances.
IV. CONCLUSION
22
23
The Court has carefully considered Plaintiffs’ motion for attorneys’ fees and
24
costs in light of the Kerr factors, including the time required, the novelty and
25
difficulty of the questions involved, and the results obtained. Having done so, the
26
27
28
motion is hereby GRANTED in part and DENIED in part. It is accordingly
ORDERED that Plaintiffs are awarded attorneys’ fees and costs totaling
29
06-CV-02671
1
$337,752.27. This award includes $317,927.50 in attorneys’ fees and $19,824.77 in
2
3
costs. The Clerk of Court shall enter judgment (as to fees, costs, and expenses) for
4
Plaintiffs in the amount of $337,752.27. As no issues remain, the Clerk shall close
5
the docket of this case.
6
7
IT IS SO ORDERED.
8
9
Dated: September 29, 2014
10
BARRY TED MOSKOWITZ
Chief United States District Judge
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
06-CV-02671
APPENDIX
Amy Vandeveld Invoice: Paralegal Tasks
Paralegal Work
Page 49
Page 49
Page 49
Page 53
Page 53
Page 54
Page 54
Page 54
Page 54
Page 54
Page 54
Page 54
Page 54
Page 54
Page 54
Page 55
Page 55
Page 55
Page 56
Page 56
Page 56
Page 57
Page 57
Page 58
Page 58
Page 58
Page 58
Page 59
Page 59
Page 59
Page 63
Page 63
Page 65
Page 65
Page 65
Page 65
Page 65
Page 65
Page 65
Page 65
Page 65
Page 65
Page 65
Page 80
Page 93
Page 93
Page 93
Page 93
Page 94
Page 94
Page 94
Page 138
Page 139
Page 167
Page 156
Page 170
Page 171
Total
Hours
0.1
0.5
0.1
4.2
3.2
0.2
2.1
0.5
3.2
6.8
5.2
5.3
1.8
1.5
1.6
2.4
0.8
4.5
0.5
3.8
1
2.7
4.3
2.1
0.5
2.1
1.4
1.2
1
1.2
0.7
0.8
0.5
0.3
0.7
0.4
0.5
0.4
0.5
0.5
0.2
0.1
0.4
2.5
0.5
0.3
7.4
1.8
0.2
0.6
0.1
6.5
10.8
9.1
0.3
1
3.3
116.2
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