Chris Kohler v. Eddie Bauer LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2019
• Docket: 17-55274
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRIS KOHLER, No. 17-55274

Plaintiff-Appellant, D.C. No. 2:10-cv-04680-PSG-PJW v.

EDDIE BAUER LLC, DBA Eddie Bauer MEMORANDUM* Outlet #R162, A Delaware LLC,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted April 11, 2019 Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and GILSTRAP,** District Judge.

Plaintiff-appellant Chris Kohler (Kohler) appeals the district court’s order

granting in part and denying in part his motion for attorneys’ fees, costs, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Rodney Gilstrap, United States District Judge for the Eastern District of Texas, sitting by designation. litigation expenses. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the award of attorneys’ fees for an abuse of discretion. See Dunlap v.

Liberty Nat. Prod., Inc., 878 F.3d 794, 797 (9th Cir. 2017).

“Once a party is found eligible for fees, the district court must then

determine what fees are reasonable. . . .” Klein v. City of Laguna Beach, 810 F.3d

693, 698 (9th Cir. 2016) (citation omitted). District courts apply the lodestar

method to determine a reasonable fee. See Bravo v. City of Santa Maria, 810 F.3d

659, 665-66 (9th Cir. 2016). The lodestar amount is determined by multiplying the

number of hours “reasonably expended on a case by a reasonable hourly rate.”

Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (citation omitted).

The district court properly determined that Kohler was the prevailing party,

as the parties entered into a settlement agreement in which Kohler received

monetary damages. See Prison Legal News v. Schwarzenegger, 608 F.3d 446, 451

(9th Cir. 2010) (“[W]e have held that a plaintiff who obtains a legally enforceable

settlement agreement qualifies as a prevailing party, at least when the district court

retains jurisdiction to enforce the agreement. . . .”) (citation and internal quotation

marks omitted).

The district court did not abuse its discretion in determining the lodestar

amount. The court reasonably considered the 2015 Real Rate Report (RRR), a

2 national publication that provides statistical data on attorneys’ fees by location and

practice areas. Other district courts in the Central District have also relied on the

RRR. See, e.g., Abrego v. City of Los Angeles, No. CV 15-00039-BRO (JEMx),

2017 WL 3453293, at *6 (C.D. Cal. June 16, 2017); Rivas v. ESA Mgmt. LLC, No.

14-CV-5767 DSF (ASx), 2016 WL 7647670, at *2 (C.D. Cal. Apr. 28, 2016).

The fact that the court also looked to previous awards from similar, and

fairly recent, cases involving Kohler’s attorneys did not constitute an abuse of

discretion. This is especially true where, as here, Kohler’s attorney provided very

little evidence of the prevailing hourly rate in the relevant community for similar

work. Rather, counsel provided rates for mostly class action litigation and

excessive fee cases resulting in death. See Camacho v. Bridgeport Fin. Inc., 523

F.3d 973, 980 (9th Cir. 2008) (“[T]he burden is on the fee applicant to produce

satisfactory evidence . . . that the requested rates are in line with those prevailing in

the community for similar services . . .”). On balance, the district court’s reliance

on the RRR, as well as similar cases brought by Kohler’s attorneys, does not

evidence the hold-the-line practice described by Kohler. See Moreno v. City of

Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008).

Nor did the district court, in an effort to more accurately account for the

actual hours expended, abuse its discretion in striking the excessive and redundant

3 hours billed by Kohler’s attorneys. See Costa v. Comm’r of Soc. Sec. Admin., 690

F.3d 1132, 1135 (9th Cir. 2012) (“[C]ounsel for the prevailing party should

exercise billing judgment to exclude from a fee request hours that are excessive,

redundant, or otherwise unnecessary as a lawyer in private practice would do.”)

(citation and internal quotation marks omitted). The purported administrative error

(billing for 119.30 hours in one day) was justifiably disregarded by the district

court. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“[T]he fee applicant

bears the burden of establishing entitlement to an award and documenting the

appropriate hours expended . . .”).

After determining the lodestar amount, the district court retains discretion to

adjust the lodestar upward or downward applying the factors set forth in Kerr v.

Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (Kerr Factors), which

include “the quality of representation, the benefit obtained for the class, the

complexity and novelty of the issues presented, and the risk of nonpayment,” as

well as the results obtained. Stetson v. Grissom, 821 F.3d 1157, 1166-67 (9th Cir.

2016) (citation omitted). The district court is required to consider “the relationship

between the extent of success and the amount of the fee award.” Morales v. City of

San Rafael, 96 F.3d 359, 362 (9th Cir. 1996), as amended (citation and internal

quotation marks omitted). Therefore, the district court properly considered that:

4 1) this was a fairly straightforward case of access to facilities under the Americans

with Disabilities Act involving a single plaintiff; 2) following a two-day bench trial

and an appeal, Kohler prevailed on only one claim, which was settled for $8,000;

and 3) Kohler’s attorney sought $549,100 in fees for settlement of that one claim.

See Bravo, 810 at 666 (“The Supreme Court teaches that the degree of success

obtained is the most critical factor in determining the reasonableness of a fee

award. . . .” (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)) (internal

quotation marks omitted).

Consequently, although the better practice would have been for the district

court to more fully discuss each Kerr factor, on balance we cannot say that the

district court abused its discretion under the particular facts of this case. See id.

AFFIRMED.