NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIAN WHITAKER, No. 20-55838
Plaintiff-Appellant, D.C. No. 2:19-cv-06877-MWF-AGR v.
SMB GROUP, a California limited MEMORANDUM* partnership; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted August 11, 2021 Seattle, Washington
Before: EBEL,** BRESS, and VANDYKE, Circuit Judges.
Brian Whitaker appeals the district court’s partial fee award totaling $11,349,
roughly half of the $20,459 in attorneys’ fees that Whitaker requested. Specifically,
Whitaker argues that the district court erred by: (1) denying compensation for hours
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. spent on a motion to enforce settlement, (2) imposing a ten percent across-the-board
reduction in hours billed after already having imposed a deduction for overbilled
tasks and block billing, and (3) basing its determination of reasonable hourly rates
entirely on past awards to attorneys from the Center for Disability Access (CDA),
rather than considering other factors used to determine the prevailing rate in the
community. We have jurisdiction pursuant to 28 U.S.C. § 1291 and conclude that
the district court erred because it failed to consider relevant factors outlined in
Roberts v. City of Honolulu, 938 F.3d 1025 (9th Cir. 2019), and Moreno v. City of
Sacramento, 534 F.3d 1106 (9th Cir. 2008), to determine reasonable hourly rates.
Whitaker’s other arguments are without merit.
Whitaker sued SMB Group (SMB) and Yoon Jeong Row (Row) for violations
of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.,
and the Unruh Civil Rights Act, Cal. Civ. Code §§ 51–53. CDA, the law firm
representing Whitaker, represents that it files a “large percentage” of the ADA cases
in California. According to SMB and Row, Whitaker has been a plaintiff in more
than 1,100 such cases filed in the Central District of California since 2014.
The few facts relevant to this appeal are as follows. On February 11, 2020,
the parties entered a memorandum of understanding with respect to damages and
stipulated Whitaker was entitled to seek attorneys’ fees and costs. On June 11, 2020,
Whitaker filed a motion for attorneys’ fees requesting $20,459 for forty-two hours
2 of work completed by six attorneys billing at hourly rates ranging from $450 to $595.
On July 17, 2020, the district court awarded Whitaker $11,349 in attorneys’ fees.
The district court arrived at the $11,349 award amount by deducting hours from
CDA’s billing statement and then lowering the applicable hourly rates on the
remaining hours (ranging from $350 to $425).
We hold that while the district court adequately explained its deductions for
the hours spent on the settlement enforcement motion and for block billing, it did
not adequately justify its reduction in CDA’s requested hourly rates.
First, the district court adequately explained its denial of attorneys’ fees for
the hours CDA spent on its motion to enforce the settlement. Under the lodestar
method, “a district court must start by determining how many hours were reasonably
expended on the litigation, and then multiply those hours by the prevailing local rate
for an attorney of the skill required to perform the litigation.” Moreno, 534 F.3d at
1111. “The district court may then adjust upward or downward based on a variety
of factors.” Id. “When the district court makes its award, it must explain how it
came up with the amount. The explanation need not be elaborate, but it must be
comprehensible.” Id.
Here, the district court pointed out that it had previously directed the parties
to meet and confer to avoid unnecessary motion practice. The court likewise
expressed concern that CDA billed hours for a hearing that never happened, for
3 unnecessary briefing on a settlement motion, and for an unnecessary motion to
enforce settlement. Because the court thus provided a comprehensible explanation
for deducting hours from CDA’s bills, which was not “illogical, implausible, or
without support in the record,” the court did not abuse its discretion in denying
compensation for these hours. Johnson v. MGM Holdings, Inc., 943 F.3d 1239, 1241
(9th Cir. 2019) (citation omitted).
Second, the court adequately explained that CDA spent excessive amounts of
time on certain block-billed tasks, which justified a fifteen percent deduction on
block-billed hours and a ten percent overall reduction of the remaining billed hours.
See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1111 (9th Cir. 2014) (“A
district court can reduce a lawyer’s request for duplicative or unnecessary work, and
it can impose up to a 10 percent reduction without explanation.”); Welch v. Metro.
Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (holding that a district court has the
“authority to reduce hours that are billed in block format” because a “fee applicant
bears the burden of documenting the appropriate hours expended” and “block billing
makes it more difficult to determine how much time was spent on particular
activities”); Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1222–
23 (9th Cir. 2010) (holding that it was “a reasoned exercise of discretion” for a
district court to (1) reduce block-billed hours by more than 15 percent, (2) exclude
“fees incurred because of court-requested supplemental information,” and
4 (3) impose “an additional 10% across-the-board reduction for excessive and
redundant work”).
In this case, the district court imposed a permissible reduction, explaining that
CDA’s billing was excessive considering how many nearly identical cases CDA
regularly litigates. After noting that the case involved “no substantive motions
practice or discovery” and comparing it to “a routine, non-complex case [that] was
overstaffed to a degree that significant inefficiencies and inflated fees resulted,” the
district court found the case was overbilled. Because the district court adequately
justified these reductions as accounting for overbilling on a non-complex case, it did
not abuse its discretion.
Third, the district court erred in its determination of hourly rates when it
reduced CDA’s rates based solely on fee awards to CDA in prior cases, instead of
considering other evidence of the prevailing community rates provided by CDA in
the current case.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIAN WHITAKER, No. 20-55838
Plaintiff-Appellant, D.C. No. 2:19-cv-06877-MWF-AGR v.
SMB GROUP, a California limited MEMORANDUM* partnership; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted August 11, 2021 Seattle, Washington
Before: EBEL,** BRESS, and VANDYKE, Circuit Judges.
Brian Whitaker appeals the district court’s partial fee award totaling $11,349,
roughly half of the $20,459 in attorneys’ fees that Whitaker requested. Specifically,
Whitaker argues that the district court erred by: (1) denying compensation for hours
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. spent on a motion to enforce settlement, (2) imposing a ten percent across-the-board
reduction in hours billed after already having imposed a deduction for overbilled
tasks and block billing, and (3) basing its determination of reasonable hourly rates
entirely on past awards to attorneys from the Center for Disability Access (CDA),
rather than considering other factors used to determine the prevailing rate in the
community. We have jurisdiction pursuant to 28 U.S.C. § 1291 and conclude that
the district court erred because it failed to consider relevant factors outlined in
Roberts v. City of Honolulu, 938 F.3d 1025 (9th Cir. 2019), and Moreno v. City of
Sacramento, 534 F.3d 1106 (9th Cir. 2008), to determine reasonable hourly rates.
Whitaker’s other arguments are without merit.
Whitaker sued SMB Group (SMB) and Yoon Jeong Row (Row) for violations
of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.,
and the Unruh Civil Rights Act, Cal. Civ. Code §§ 51–53. CDA, the law firm
representing Whitaker, represents that it files a “large percentage” of the ADA cases
in California. According to SMB and Row, Whitaker has been a plaintiff in more
than 1,100 such cases filed in the Central District of California since 2014.
The few facts relevant to this appeal are as follows. On February 11, 2020,
the parties entered a memorandum of understanding with respect to damages and
stipulated Whitaker was entitled to seek attorneys’ fees and costs. On June 11, 2020,
Whitaker filed a motion for attorneys’ fees requesting $20,459 for forty-two hours
2 of work completed by six attorneys billing at hourly rates ranging from $450 to $595.
On July 17, 2020, the district court awarded Whitaker $11,349 in attorneys’ fees.
The district court arrived at the $11,349 award amount by deducting hours from
CDA’s billing statement and then lowering the applicable hourly rates on the
remaining hours (ranging from $350 to $425).
We hold that while the district court adequately explained its deductions for
the hours spent on the settlement enforcement motion and for block billing, it did
not adequately justify its reduction in CDA’s requested hourly rates.
First, the district court adequately explained its denial of attorneys’ fees for
the hours CDA spent on its motion to enforce the settlement. Under the lodestar
method, “a district court must start by determining how many hours were reasonably
expended on the litigation, and then multiply those hours by the prevailing local rate
for an attorney of the skill required to perform the litigation.” Moreno, 534 F.3d at
1111. “The district court may then adjust upward or downward based on a variety
of factors.” Id. “When the district court makes its award, it must explain how it
came up with the amount. The explanation need not be elaborate, but it must be
comprehensible.” Id.
Here, the district court pointed out that it had previously directed the parties
to meet and confer to avoid unnecessary motion practice. The court likewise
expressed concern that CDA billed hours for a hearing that never happened, for
3 unnecessary briefing on a settlement motion, and for an unnecessary motion to
enforce settlement. Because the court thus provided a comprehensible explanation
for deducting hours from CDA’s bills, which was not “illogical, implausible, or
without support in the record,” the court did not abuse its discretion in denying
compensation for these hours. Johnson v. MGM Holdings, Inc., 943 F.3d 1239, 1241
(9th Cir. 2019) (citation omitted).
Second, the court adequately explained that CDA spent excessive amounts of
time on certain block-billed tasks, which justified a fifteen percent deduction on
block-billed hours and a ten percent overall reduction of the remaining billed hours.
See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1111 (9th Cir. 2014) (“A
district court can reduce a lawyer’s request for duplicative or unnecessary work, and
it can impose up to a 10 percent reduction without explanation.”); Welch v. Metro.
Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (holding that a district court has the
“authority to reduce hours that are billed in block format” because a “fee applicant
bears the burden of documenting the appropriate hours expended” and “block billing
makes it more difficult to determine how much time was spent on particular
activities”); Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1222–
23 (9th Cir. 2010) (holding that it was “a reasoned exercise of discretion” for a
district court to (1) reduce block-billed hours by more than 15 percent, (2) exclude
“fees incurred because of court-requested supplemental information,” and
4 (3) impose “an additional 10% across-the-board reduction for excessive and
redundant work”).
In this case, the district court imposed a permissible reduction, explaining that
CDA’s billing was excessive considering how many nearly identical cases CDA
regularly litigates. After noting that the case involved “no substantive motions
practice or discovery” and comparing it to “a routine, non-complex case [that] was
overstaffed to a degree that significant inefficiencies and inflated fees resulted,” the
district court found the case was overbilled. Because the district court adequately
justified these reductions as accounting for overbilling on a non-complex case, it did
not abuse its discretion.
Third, the district court erred in its determination of hourly rates when it
reduced CDA’s rates based solely on fee awards to CDA in prior cases, instead of
considering other evidence of the prevailing community rates provided by CDA in
the current case. We determine that the district court’s justification was insufficient
under our precedents. See Roberts, 938 F.3d at 1020 (holding that examining prior
fee awards to particular attorneys in a particular district cannot substitute for
considering whether declarations submitted by attorneys do, or do not, establish the
prevailing hourly rate in a district); Moreno, 534 F.3d at 1114 (“The hourly rate …
is to be calculated by considering certain factors, including the novelty and difficulty
5 of the issues, the skill required to try the case, whether or not the fee is contingent,
the experience held by counsel and fee awards in similar cases.”).
We cannot discern that, in its explanation of why it reduced the hourly rates
sought by CDA, the district court analyzed the complexity of the case, the type of
work involved, rates for non-CDA lawyers of comparable skill in the relevant
community, whether the legal work was performed by lawyers at the appropriate
levels of seniority, or other relevant factors. See Camacho v. Bridgeport Fin., Inc.,
523 F.3d 978–82 (9th Cir. 2009); see also Roberts, 938 F.3d at 1025 (“[W]e remand
specifically for the district court to apply the correct legal standard by determining
the prevailing hourly rate in the District of Hawaii for comparable work performed
by attorneys of similar ‘skill, experience and reputation.’” (quoting Camacho, 523
F.3d 973 at 980–81)).
It may be that the district court here considered the above factors and thus the
hourly rates the district court applied were appropriate. But we cannot make that
determination on the current record. Accordingly, the district court’s fee award is
vacated and the case is remanded for review consistent with this memorandum.1
VACATED and REMANDED.
1 SMB and Row filed a motion to take judicial notice on February 16, 2021 (ECF No. 21). Whitaker filed a motion to take judicial notice on April 7, 2021 (ECF No. 30). Because both motions ask us to take notice of publicly available cases, we GRANT both motions.