Schutza et al v. San Diego, City of et al

Filing 110

ORDER on Motion for Attorneys' Fees [Doc. No. 104 ]. Signed by Judge Cathy Ann Bencivengo on 7/24/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCOTT SCHUTZA and JOHN
KARCZEWSKI,

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ORDER ON MOTION FOR
ATTORNEYS’ FEES
[Doc. No. 104]

Plaintiffs,

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Case No.: 3:13-cv-2992-CAB-(KSC)

v.
CITY OF SAN DIEGO; AIR
CALIFORNIA ADVENTURE, INC., a
California Corporation doing business as
TORREY PINES GLIDERPORT, and
DOES 1-10,

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Defendants.

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This matter comes before the Court on Plaintiffs Scott Schutza and John

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Karczewski’s (collectively “Plaintiffs”) Motion for Attorneys’ Fees under the Americans

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with Disabilities Act (“ADA”). [Doc. No. 104.] The Court finds the matter suitable for

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determination on the papers submitted in accordance with Civil Local Rule 7.1(d)(1) and

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therefore denies Defendants’ request oral argument. For the reasons set forth below, the

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Court grants the motion.

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I.

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Plaintiffs are both unable to walk or stand independently as the result of paraplegia,

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and use wheelchairs for mobility. In the Spring of 2013, Plaintiffs visited the Torrey Pines

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Gliderport (“Gliderport”) seeking to join other spectators in watching the sailplanes, hang

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gliders and paragliders and encountered various barriers that denied them full and equal

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access to and enjoyment of the premises.

Background

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On December 12, 2013, Plaintiffs filed suit against Defendants alleging violations

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of ADA, 41 U.S.C Sections 12101, et seq., the California Unruh Civil Rights Act (the

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“Unruh Act”), California Civil Code Section 51, et seq., and the California Disabled

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Persons Act (“CPDA”), California Civil Code Sections 54.1 et seq. [Doc. No. 1.]

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After two years of litigation, the parties filed cross motions for summary judgment.

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[Doc. Nos. 47, 50.] On June 29, 2016, this Court issued an Order that denied Defendants’

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motion for summary judgment and granted in part and denied in part Plaintiffs’ motion for

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summary judgment. [Doc. No. 65.] In its Order, the Court determined that the Gliderport

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was a place of public accommodation that was subject to the ADA. The Court granted

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Plaintiffs’ Title III ADA claim related to the portable toilets located at the Gliderport, the

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Unruh Act claim and the CPDA claim. Finding triable issues of fact regarding the ease of

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remediation of the violations occurring at the parking lot, concession stand and picnic

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tables and whether the relief sought by Plaintiffs were reasonable accommodations, the

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Court denied Plaintiffs’ Title II ADA claim and the Title III ADA claims on these barriers.

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Following the November 4, 2016 Pretrial Conference, the parties engaged in

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settlement discussions that culminated in the issuance of a consent decree. [Doc. No. 107.]

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Under the terms of the consent decree, Defendants would provide two designated disable

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accessible parking spots, one fully compliant accessible unisex bathroom and an accessible

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concession stand at the Gliderport. The parties also agreed to have the Court determine the

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amount of recoverable statutory penalties and the attorneys’ fees award.

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On April 14, 2017, Plaintiffs filed their application for attorneys’ fees and costs,

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requesting a total of $90,533. [Doc. No. 104.] Additionally, Plaintiffs request $24,000 in
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statutory penalties under the Unruh Act. [Id. at 61.] Defendants filed their opposition [Doc.

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No. 108] and Plaintiffs filed their reply [Doc. No. 109].

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II.

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

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other than the United States, a reasonable attorney’s fee, including litigation expenses, and

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costs.” 42 U.S.C. § 12205. “A prevailing plaintiff under the ADA should ordinarily

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recover an attorney’s fee unless special circumstances would render such an award unjust.”

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Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008) (internal quotation marks and

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citation omitted). Without this fee-shifting provision “few aggrieved parties would be in a

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position to advance the public interest by invoking the injunctive powers of the federal

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courts.” Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam).

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“Consequently, recovery is the rule rather than the exception.” Jankey, 537 F.3d at 113

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(internal quotation marks and citation omitted).

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violation of the Unruh Act “is liable for . . . any [attorneys’] fees that may be determined

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by the court. . . .” CAL. CIV. CODE § 52(a).

Legal Standard

Additionally, any person found in

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Typically, “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees

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purposes if they succeed on any significant issue in litigation which achieves some of the

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benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)

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(citation omitted). “The prevailing party inquiry does not turn on the magnitude of the

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relief obtained.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). Rather, in ADA cases, “[f]or

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a litigant to be a ‘prevailing party’ for the purposes of awarding attorneys’ fees, he must

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meet two criteria: he must achieve a material alteration of the legal relationship of the

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parties, and that alteration must be judicially sanctioned.” Jankey, 537 F.3d at 1129-30

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(quoting P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1154, 1172 (9th Cir. 2007)).

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Document numbers and page references are to those assigned by CM/ECF for the docket entry.
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The most useful starting point for determining attorneys’ fees awarded under the

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ADA is by performing the lodestar calculation – the number of hours reasonably expended

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on the litigation multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433. For a

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fee request to be adjudged reasonable, it must “exclude from this initial fee calculation

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hours that were not ‘reasonably expended’” and should not include fee requests for hours

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that are excessive, redundant, or otherwise unnecessary. Id. at 433-34.

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III.

Discussion

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Defendants do not challenge Plaintiffs’ prevailing party status. Having entered

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judgment for Plaintiffs on one of their ADA claims, their Unruh Act claim and their CDPA

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claim, the Court finds them to be the prevailing party and therefore entitled to recover fees

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and litigation expenses under the ADA and Unruh Act.

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With their motion for attorneys’ fees and judgment, Plaintiffs submit a declaration

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from one of their attorneys, Mr. Mark Potter, along with supporting documentation that

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provide an itemized description of the time spent by their counsel on this matter beginning

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on March 18, 2013 and ending in March 2017. [Doc. Nos. 104-2, 104-3.] The declaration

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also sets forth counsel and his colleagues’ qualifications and hourly rates. Plaintiffs request

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a total award in the amount of $90,533.00 demanding $84,055 in attorneys’ fees and $6,478

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in litigation expenses. Further, Plaintiffs seek $24,000 in statutory penalties under the

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Unruh Act; $12,000 per Plaintiff for each violation they encountered on three different

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occasions. [Doc. No. 104-1 at 6.]

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Defendants do not dispute the hourly rates of Plaintiffs’ counsel but object to the

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award of any fees, and in the alternative, argue that any award should be proportionally

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reduced to take into account all the facts and circumstances of the case and the results

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obtained. [Doc. No. 108 at 5-25.] Defendants also assert that Plaintiffs should not be

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awarded statutory damages, and assuming that they are so entitled, argue that Plaintiffs

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must mitigate their damages under the Unruh Act. [Id. at 26-27.]

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Fee award proportional to Plaintiffs’ recovery

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A.

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Defendants argue that Plaintiffs’ recovery should be reduced to reflect the minimal

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success they achieved. [Doc. No. 108 at 11-14, 22-23.] Defendants posit that “Plaintiffs

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received essentially no relief as a result of their attorney’s effort; the vast majority of the

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relief received was provided voluntarily, independent of any settlement discussions, and

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prior to the settlement demanded by Plaintiffs’ attorneys.” [Doc. No. 108 at 13:17-20.]

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Plaintiffs counter that they have substantially prevailed, achieved excellent results that

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warrant granting the full fee amount and that Defendants are downplaying the results

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achieved. [Doc. No. 109 at 10-14.] The Court agrees with Plaintiff.

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In determining the amount of fees to award, district courts must consider the results

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obtained. Hensley, 461 U.S. at 434. “Where a plaintiff has obtained excellent results, his

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attorney should recover a fully compensatory fee.” Id. at 435. In such circumstances

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reduction of the fee award is not required simply because plaintiff has not prevailed on

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every issue. Id. “If on the other hand, a plaintiff has achieved only partial or limited

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success, the product of hours reasonably expended on the litigation as a whole times a

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reasonable hourly rate may be an excessive amount.” Id. at 436.

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The Court finds Defendants’ claim that Plaintiffs achieved little or no success

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disingenuous and a misrepresentation of their stance throughout this litigation. While

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Defendants claim they willingly made changes to alleviate the barriers long before the

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negotiation of the settlement, they were unwilling to make any concessions or remedy any

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of the barriers until after their summary judgment motion was denied in full. Further, the

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Court finds Defendants’ assertion that Plaintiffs’ pursuit of their claims after they were

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aware of Defendants compliance “unreasonable and vexatious tactics [that] accomplished

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little more than to multiply the proceedings in violation of 28 U.S.C. § 1927” lacks merit.

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28 U.S.C. § 1927 provides that any person “who so multiplies the proceedings in any case

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unreasonably and vexatiously may be required by the court to satisfy personally the excess

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costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” In the

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Court’s view, Plaintiffs were simply ensuring that Defendants’ continued responsibility to
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provide accessible parking spots, toilets and a concessions area was appropriately

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memorialized.

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In the complaint, Plaintiffs alleged that there were multiple barriers at the Gliderport

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which prevented them, and similarly situated persons, “full and equal” access to

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Defendants’ public facilities as required by the ADA. [Doc. No. 1 at ¶ 2.] Plaintiffs

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identified the following barriers: (1) no designated accessible parking spaces; (2) no

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accessible restroom facilities; (3) unsafe pedestrian paths of travel that were not accessible

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to wheelchair uses; (4) no accessible picnic tables; (5) a concessions stand with a counter

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that was too high and which had no accessible path to it and its adjoining seating area. [Id.

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at ¶15.] As a result of Plaintiffs’ efforts, Defendants are obligated to provide and maintain

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two designated accessible parking stalls with access aisles, a fully compliant accessible

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restroom, an accessible transaction counter, and a picnic table that is accessible, properly

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designated and reserved. [Doc. No. 107.]

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The Court is familiar with the positions taken by the parties during this case. For

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example, it was Defendants who contended that the Gliderport was not a place of public

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accommodation and asserted that it did not have to provide ADA compliant restrooms,

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eating areas and parking spaces because of the historic nature of the Gliderport. [Doc. Nos.

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47, 55, 58, 63.] Furthermore, Defendants’ unwillingness to effectuate changes at the

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Gliderport was evidenced by their contentions in their summary judgment briefings that

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the public street provided an alternative site for watching the sailplanes, hang gliders and

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paragliders [Doc. No. 63 at 5, fn. 4], and that replacing the partially complaint toilet with

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one that was completely compliant was not readily achievable, would cost too much money

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and that under the applicable ADA standard they were relieved of any responsibility to

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provide any accessible toilet at all. [Doc. No. 55 at 11, 12; Doc. No. 63 at 10.] The Court

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is not convinced that any of the changes effectuated at the Gliderport would have occurred

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but for Plaintiffs’ pursuit of this lawsuit.

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The Court is also unwilling to interpret Plaintiffs’ abandonment of their pedestrian

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paths of travel claim as evidence of their ineligibility for a fee award. Rather, the Court
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views it as a pragmatic response in consideration of how “readily achievable” remediation

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of a coastal bluff would be. Defendants assert that “the single most divisive issue in this

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case has been the grading of the coastal bluff in order to provide level parking or compliant

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paths of travel.” [Doc. No. 108 at 8.] Yet, it was Defendants who claimed that the potential

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presence of native artifacts and sensitivity of the surrounding ecosystem necessitated

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involving multiple agencies, would cost hundreds of thousands of dollars and take years to

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conclude while scoffing at Plaintiffs suggestions that it did not require such excessive

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structural changes. [Doc. No. 47-1, 47-14, 47-16, 55-5, 55-6.] Notably, the consent decree

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provides for the designation of two accessible stalls with access aisles, and allows for

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delineation of the spaces via blue pavers, a solution that is markedly similar to one proposed

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by Plaintiffs at the summary judgment stage.

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Upon consideration of the results achieved, the Court concludes that Plaintiffs have

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“obtained excellent results, [and their] attorney[s] should recover a fully compensatory

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fee.” Hensley, 461 U.S. at 435.

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B.

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Having found Plaintiffs’ excellent results support an award of fees, the Court

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considers whether the lodestar amounts supports the requested attorneys’ fee award.

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Plaintiffs’ counsel declares that they have worked over 246.9 on the case, and that the

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calculated lodestar fee on these hours is $84,055.00. The Court concludes that the lodestar

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amount supports approval of the requested attorneys’ fees.

Lodestar calculation supports requested fee

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Under the lodestar method, “the Court first determines the appropriate hourly rate

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for the work performed, and then multiplies that amount by the number of hours properly

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expended in doing the work. “Although ‘in extraordinary circumstances’ the amount

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produced by the lodestar calculation may be increased, ‘there is a strong presumption that

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the lodestar is sufficient.’” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d, 1165,

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1176 (9th Cir. 2010). Typically, “affidavits of the plaintiffs’ attorney and other attorneys

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regarding prevailing fees in the community and rate determinations in other cases,

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particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the
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prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403,

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407 (9th Cir. 1990) (citing Chalmers v. City of L.A., 796 F.2d 1205, 1214 (9th Cir. 1986)).

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See also PLCM Group v. Drexler, 22 Cal. 4th 1084, 1095 (2000) (a reasonable hourly rate

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is the prevailing rate charged by attorneys of similar skill and experience in the relevant

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community). In addition to considering affidavits and evidence submitted by the parties,

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the court may “rely on its own familiarity with the legal market.” Ingram v. Oroudjian,

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647 F.3d 925, 928 (9th Cir. 2011). For a fee request to be adjudged reasonable it must

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“exclude from this initial fee calculation hours that were not ‘reasonably expended’” and

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should not include fee requests for hours that are excessive, redundant, or otherwise

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unnecessary. Hensley, 461 U.S. at 433-34.

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1. Reasonableness of hourly rate

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Defendants do not object to the hourly rate. Plaintiffs calculate the lodestar with the

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following hourly rates for attorneys from the law firm Potter Handy, LLP and its’ Center

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for Disability Access Division: $425 for Mark Potter, $425 for Russell Handy, $350 for

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Phyl Grace, $250 for Chris Carson, $250 for Isabel Masanque, $250 for Amanda Lockhart,

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$250 for Tamara Zaki. [Doc. No. 104-1 at 10.] In support, declarations and other evidence

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are offered to demonstrate the reasonableness of these rates compared to the prevailing

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market rates in the San Diego community for attorneys of their experience and ability.

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[Doc. Nos. 104-2, 104-3.] Included as evidence are four central district cases, from 2011,

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2015 and 2016, where Plaintiffs’ counsel requested similar hourly rates that were found to

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be reasonable by the court. [Doc. Nos. 104-6 – 104-9.] See, e.g., Salinas v. Rite Aid Lease

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Mgmt. Co., et al., No CV 10-7499 SVW (FMOx), 2011 WL 1107213, at *1-2 (C.D. Cal.

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Mar. 17, 2011) (approving hourly rate of $425 for Messrs. Potter and Handy); Lopez v.

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Gordon, Case No. 2:14-cv-07791-CAS(BKx), 2016 WL 6998563, at * 2 (C.D. Cal. Nov.

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28, 2016) (concluding that the Mr. Potter’s hourly rate of $425, Ms. Grace’s hourly rate of

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$350, Ms. Carson’s hourly rate of $250 and Ms. Masanque’s hourly rate of $250 were

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reasonable.).

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After reviewing the evidence offered and awards in similar cases, the Court

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concludes the hourly rates Plaintiffs seek are reasonable. See United Steelworkers, 896

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F.2d at 407 (rate determinations in other cases setting a rate for plaintiffs’ attorney provide

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satisfactory evidence).

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2. Inclusion of unnecessary hours in fee request

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Defendants assert that Plaintiffs’ fee request should be reduced for unnecessary

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hours. After tallying the entries in the chart proffered by Defendants, it appears that they

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are requesting 23.4 hours be subtracted from the number of hours worked. Defendants

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posit that Plaintiffs’ inclusion of the claim regarding the accessible picnic tables at the

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Gliderport was in bad faith and take issue with a number of entries in Plaintiffs’ billing

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records. [Doc. No. 108 at 13-22.] Plaintiffs object to all but one of Defendants’ challenged

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entries, claiming entitlement to all but 2.2 of the 246.9 hours worked.

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As to the picnic tables, the Court finds no merit in Defendants’ assertion. In the

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order on the cross motions for summary judgment the Court determined that “[w]hether or

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not these picnic tables are ADA compliant is a material fact in dispute.” [Doc. No. 65 at

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24:14-15.] Defendants’ claim that Plaintiffs “acted in bad faith when they continued to

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pursue their claim regarding the tables knowing all along that there were, in fact, accessible

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tables at the Gliderport” ignores the Court’s earlier finding on the issue. If Defendants had

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provided compliant picnic tables at the Gliderport prior to the filing of this lawsuit, they

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did not provide such compliance evidence to the Court, or the issue would have been moot.

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See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011) (an ADA claim

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becomes moot once the defendant corrects the violation because “damages are not

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recoverable under Title III of the ADA – only injunctive relief is available for violations

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of Title III.”). Accordingly, the Court declines to reduce the fee award on this basis.

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Further, the Court has reviewed the billable entries that Defendants take issue with.

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[Doc. No. 108 at 14-22.] While Defendants have generated a chart that includes the 43

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challenged entries, they provide very little information pertaining to the reasons for the

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challenge, aside from the conclusory entries “admin,” “attorneys cannot bill for review of
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one’s own billing entries,” “unnecessary time expended,” “discussion between two

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attorneys representing the same client cannot be billed to the client,” “discovery motion

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denied,” “block billing” and “not billable.” The Court does not find such challenges

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adequately describe why these hours were excessive. Furthermore, Defendants provide no

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case law in support of their boilerplate conclusions or any evidence to support their

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contentions before summarily concluding that “[n]one of the foregoing items are billable

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or should be counted as compensable items.” Without more, the Court is unwilling to find

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that these entries are not billable or that the time was not “reasonable expended” on the

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litigation.

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As Plaintiffs concede the duplicative billing entry regarding the public records

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search performed by Mr. Potter, the Court will deduct 2.2 hours of his time, at a rate of

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$425 an hour, from the total fee award.

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C. Award of statutory damages under the Unruh Act

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Plaintiffs assert that they are both entitled to $12,000 in statutory damages.

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Defendants counter that an award of damages under the Unruh Act is at the discretion of

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the Court and are not automatically awarded due to a violation. [Doc. No. 108 at 23-25.]

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Relatedly, Defendants argue that Plaintiffs must mitigate their damages under the Unruh

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Act and are precluded from “stacking their damages.” [Id. at 26-27.]

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The Unruh Act provides that:

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Whoever denies, aids or incites a denial, or makes any discriminatory or
distinction contrary to Section 51 or 51.5, is liable for each and every offense
for the actual damages, and any amount that may be determined by a jury, or
a court sitting without a jury, up to a maximum of the three times the amount
of actual damage but in no case less than four thousand dollars ($4,000), and
any attorney’s fees that may be determined by the court in addition thereto,
suffered by any person denied the rights provided by Section 5.1 or 51.5

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CAL. CIV. CODE § 52(a). Because actual damages and statutory damages are listed as two

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separate categories “proof of actual damages is not a prerequisite to recovery of statutory

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minimum damages.” Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000).

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See also Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007) (“The litigant need

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not prove she suffered actual damages to recover the independent statutory damages of

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$4,000.”); Moore v. Dollar Tree Stores, Inc., 85 F. Supp. 3d 1176, 1183 (E.D. Cal. 2015)

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(“To recover statutory damages, plaintiffs must showed that they were denied “equal

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access,” proof of actual damages is not required.”). Further, when a plaintiff brings an

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Unruh Act claim on the grounds that a defendant has violated the ADA, they “may obtain

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statutory damages on proof of an ADA access violation without the need to demonstrate

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additionally that the discrimination was intentional.” Munson v. Del Taco, 46 Cal. 4th 661,

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670 (2009); Moore 85 F. Supp. 3d at 1183 (a violation of the ADA constitutes a violation

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of the Unruh Act, therefore “[w]here the basis of liability for an Unruh Act violation is an

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ADA violation, plaintiff need not prove intentional discrimination.”).

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The Court declines Defendants’ invitation to revisit the issue of whether or not

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Plaintiffs were denied full and equal access to the Gliderport, choosing instead to stand by

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its earlier finding at the summary judgment stage. There, the Court concluded “Plaintiffs

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established that they encountered an ADA violation on March 11, 2013 and March 13,

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2013, and in September 2014 and therefore have established Unruh Act violations.” 2 [Doc.

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No. 65 at 26:1-3.] See, e.g., Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1170 (S.D.

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Cal. 2006) (holding that the evidence established three visits in which Plaintiff was denied

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full access which entitled each Plaintiff to $12,000, $4,000 each per violation.). See also

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Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1014 (C.D. Cal. 2014) (Plaintiff’s declaration

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that he encountered barrier once and that his knowledge of the barrier deterred him from

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making two subsequent visits was affirmative evidence sufficient to show three violations

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of the Unruh Act. The court awarded Plaintiff $12,000 in statutory damages.)

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Details regarding the access issues Plaintiffs’ experienced during their March 11 and March 13, 2013
visits to the Gliderport are provided in their declarations, [Doc. Nos. 50-3, 50-4], submitted in support of
their motion for summary judgment. While at the Gliderport, Plaintiffs were unable to use the portable
restrooms, were unaware of the existence of a toilet at the concession stand that may be wheelchair
accessible, found only one parking spot designated for disable use, and encountered a concession stand
with a counter that was too high for them. [Doc. No. 47-16 at 16-21, 39, 40-42, 43; Doc. No. 50-3; Doc.
No. 50-4.]
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The Court also disagrees with Defendants assertion that Plaintiffs are obligated to

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mitigate damages. The Court continues to find that “there is no requirement that Plaintiff

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mitigate damages when he is merely seeking statutory damages.” Langer v. McHale, Civil

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No. 13cv2721-CAB-NLS, 2014 WL 5422973, at * 4 (S.D. Cal. Oct. 20. 2014).

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Accordingly, the Court concludes that under Section 52, Plaintiffs are entitled to

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statutory damages totaling $24,000. Each Plaintiff shall receive an award of $12,000,

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$4,000 for each of the three visits.

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D. Litigation Expenses

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As the prevailing party, Plaintiffs are also entitled to costs. See 29 U.S.C. § 1920,

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Federal Rule of Civil Procedure 54(d)(1), and Local Rule 54.1.

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Defendants object to the inclusion of $1,200 paid to Mr. Taylor as “the fourth person

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billing for site inspections and taking pictures.” [Doc. No. 108, at 22.] Within the

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declaration of Mr. Potter filed in in support of the motion, Mr. Taylor is identified as the

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individual who performed the investigations and visits to the Gliderport throughout the

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case, gathered photographs and confirmed/denied Defendants’ representations about facts.

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[Doc. No. 104-2 at ¶ 3.] The Court finds nothing untoward about the inclusion of Mr.

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Taylor’s costs in the application and therefore declines to make any reduction in the

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requested costs amount. See United Steelworkers, 896 F.2d at 407 (“Out of pocket

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litigation expenses are reimbursable as part of the attorneys’ fee, distinct from the costs

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already awarded under 28 U.S.C. § 1920.”)
Accordingly, the Court accepts counsel’s declaration regarding costs and awards

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$6,478.00 in costs.

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IV.

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In light of the foregoing, the Court finds the requested fees are reasonable, and grants

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Conclusion

Plaintiffs’ motion for attorneys’ fees in the amount of $83,1203 and $6,478 in costs. The

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This amount includes a deduction of $935 for 2.2 hours that Plaintiffs concede were duplicative.
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Court also awards $12,000 in statutory damages to each of the Plaintiffs for the three

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violations of the Unruh Act.

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It is SO ORDERED.

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Dated: July 24, 2017

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