1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] Gerardo Hernandez, No. 2:20-cv-02061-KJM-JDP 12 Plaintiff, ORDER 13 v. 14 Welcome Sacramento, LLC dba Courtyard by 15 Marriott Sacramento Cal-Expo & Hotel Circle GL, LLC, 16 Defendants. 17 18 Pending before the court is plaintiff Gerardo Hernandez’s motion for attorney’s fees, costs 19 | and litigation expenses. Defendants Welcome Sacramento, LLC dba Courtyard by Marriott 20 | Sacramento Cal-Expo and Hotel Circle GL, LLC oppose the motion. As explained below, the 21 | court grants plaintiff's motion in part. 22 | I. BACKGROUND 23 Hernandez is physically disabled and encountered accessibility barriers during his visit to 24 | Courtyard by Marriott Sacramento Cal-Expo (the facility). Am. Compl. Jf 1, 7-10, ECF No. 35. 25 | Hernandez subsequently filed suit, alleging violations of the Americans with Disabilities Act of 26 | 1990, 42 U.S.C. §§ 12101, et seg. (ADA), and related California statutes, including the Unruh 27 | Act, Cal. Civ. Code § 55, id. 9§ 16-46. Hernandez sought damages, injunctive and declaratory 28 | relief, and attorney fees and costs. Id. ¥ 2.
1 Defendants filed a motion to dismiss Hernandez’s original complaint, see MTD, ECF 2 No. 8, which Hernandez opposed, see Opp’n to MTD, ECF No. 12, and the court denied, see Prior 3 Order (Sept. 23, 2021), ECF No. 20. Eighteen days after the court’s order, Hernandez requested 4 the Clerk of Court enter default against defendants because “[d]efendants have failed to . . . 5 respond to the [c]omplaint within the time prescribed by the Federal Rules of Civil Procedure.” 6 Default Req. at 2,1 ECF No. 21. That same day defendants filed an answer. Answer, ECF No. 22. 7 The clerk declined to enter Hernandez’s request for entry of default. Docket Entry (Oct. 12, 8 2021), ECF No. 23. 9 The court then stayed the action to avoid the accumulation of fees and costs and ordered 10 the parties to meet and confer to discuss settlement. See Prior Order (Oct. 8, 2021), ECF No. 24. 11 The parties subsequently participated in the Voluntary Dispute Resolution Program (VDRP) but 12 did not settle the case. Joint Status Report at 1, ECF No. 27. The court lifted the stay, Min. Order 13 (Feb. 4, 2022), ECF No. 28, and Hernandez then filed a motion to amend the complaint to allege 14 additional barriers to wheelchair accessibility, see generally Mot. to Am. Compl., ECF No. 33. 15 The court granted this motion. See Prior Order (June 7, 2022), ECF No. 34. 16 The parties later engaged in further settlement discussions and reached a settlement 17 agreement. See Tanya E. Moore Decl. ¶ 2, Mot., ECF No. 43-2. Defendants agreed to pay 18 statutory damages of $4,000 and to provide injunctive relief. See Settlement Agreement §§ 2.1– 19 2.2, Mot. Ex. A, ECF No. 43-3. The parties also filed a stipulation for dismissal with prejudice 20 except as to plaintiff’s claims for attorney’s fees and costs. See Dismissal Stipulation, ECF 21 No. 41. The court dismissed the action with prejudice but retained jurisdiction over plaintiff’s 22 claims for attorney’s fees. Min. Order (July 17, 2023), ECF No. 42. 23 Hernandez has now brought the pending motion for attorney’s fees, costs and litigation 24 expenses. See generally Mot., ECF No. 43; Mem., ECF No. 43-1. Defendants filed an ex parte 25 application seeking an extension of time to file their opposition, Appl., ECF No. 44, which 26 Hernandez opposed, Appl. Opp’n, ECF No. 45. The court denied the ex parte application but 1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 modified the briefing schedule on its own motion. Prior Order (Sept. 18, 2023), ECF No. 46. 2 Briefing is complete, see Am. Opp’n, ECF No. 48; Reply, ECF No. 49, and the court then 3 submitted the matter without oral argument as provided by Local Rule 230(g), see Prior Order 4 (Sept. 18, 2023). 5 II. LEGAL STANDARD 6 Both the ADA and the Unruh Act permit recovery of fees by a “prevailing” party. See 7 42 U.S.C. § 12205; Cal. Civ. Code § 55. Such fee-shifting statutes “enable private parties to 8 obtain legal help in seeking redress for injuries resulting from the actual or threatened violation[s] 9 of specific . . . laws.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 10 565 (1986). These statutes are not intended “to punish or reward attorneys.” Van Gerwen v. 11 Guarantee Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000). A plaintiff is considered a 12 “prevailing party” when the plaintiff enters into a legally enforceable settlement agreement which 13 “modif[ies] the defendant’s behavior in a way that directly benefits the plaintiff.” Barrios v. Cal. 14 Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002) (quoting Fischer v. SJB-P.D. Inc., 15 214 F.3d 115, 118 (9th Cir. 2000)). Here, because Hernandez has obtained “substantial relief” on 16 “related” claims, the court may award full fees under either claim and need not distinguish 17 between or among those awarded under each. See El–Hakem v. BJY Inc., 415 F.3d 1068, 1075– 18 76 (9th Cir. 2005). 19 Courts use the lodestar method to assess the reasonableness of attorney’s fees. Antoninetti 20 v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1176 (9th Cir. 2010). Under the lodestar method, 21 fees are calculated by multiplying the number of hours the prevailing party reasonably expended 22 on the litigation by a reasonable hourly rate. Id. In its lodestar assessment, the court excludes 23 hours not reasonably expended because they are “excessive, redundant, or otherwise 24 unnecessary.” Jankey v. Poop Deck, 537 F.3d 1122, 1132 (9th Cir. 2008) (quoting Hensley v. 25 Eckerhart, 461 U.S. 424, 434 (1983)). 26 III. ANALYSIS 27 It is undisputed Hernandez is the prevailing party. See Mem. at 11; Am. Opp’n at 2; 28 Dismissal Stipulation at 2 (“[f]or the purposes of [p]laintiff’s [f]ees [m]otion, the [p]arties 1 stipulate that [p]laintiff is the prevailing party in this action.”). However, the parties dispute the 2 ultimate fee award. Hernandez seeks $53,236.27 in attorney’s fees, costs and litigation expenses 3 plus additional fees incurred defending this motion, see Mot. at 1, while defendants argue the 4 court should deny or greatly reduce the fees, see Am. Opp’n at 2. The court first considers the 5 parties’ arguments regarding fees before evaluating the arguments regarding costs. 6 A. Fees 7 At the outset, defendants’ argument the court should deny or greatly reduce fees because 8 “this case has all of the hallmarks of abusive ADA litigation” and “Hernandez is plainly a serial 9 litigant” is unpersuasive. Am. Opp’n at 5. The Ninth Circuit has counseled that “courts should 10 not condemn [] serial litigation as vexatious as a matter of course,” because “[f]or the ADA to 11 yield its promise of equal access for the disabled, it may indeed be necessary and desirable for 12 committed individuals to bring serial litigation advancing the time when public accommodations 13 are compliant with the ADA.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1063 (9th Cir. 14 2007) (internal citation omitted). However, such “serial litigation can become vexatious, 15 when . . . a large number of nearly-identical complaints contain factual allegations that are 16 contrived, exaggerated, and defy common sense.” Id. 17 Nothing in the record before the court supports denying or reducing attorney’s fees on 18 serial litigation grounds. Cf. D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040 19 (9th Cir. 2008) (reversing district court’s dismissal of plaintiff’s motion for attorney’s fees in part 20 due to court’s focus on plaintiff’s history of ADA litigation). 21 Having established Hernandez is entitled to attorney’s fees, the court next applies the 22 lodestar method to assess the reasonableness of the fees he requests. 23 1. Reasonable Rates 24 The first step in calculating the lodestar amount is to determine the reasonable hourly rate. 25 Van Gerwen, 214 F.3d at 1045. In assessing applications for attorney’s fees, the court looks to 26 the prevailing market rates in the relevant legal community. Ingram v. Oroudjian, 647 F.3d 925, 27 928 (9th Cir. 2011) (citation omitted). The relevant legal community is generally the forum 28 district, with local hourly rates derived from rates for similar work by attorneys and paralegals of 1 similar experience, skill and reputation. Gonzalez v. City of Maywood, 729 F.3d 1196, 1205–06 2 (9th Cir. 2013). The relevant community here is the area served by the Sacramento courthouse in 3 the Eastern District of California. See, e.g., TBK Bank, SSB v. Singh, No. 17-00868, 2018 WL 4 1064357, at *7 (E.D. Cal. Feb. 23, 2018), report and recommendation adopted, No. 17-00868, 5 2018 WL 3055890 (E.D. Cal. Mar. 21, 2018) (noting relevant forum for case filed in Fresno was 6 area served by Fresno courthouse). 7 Here, Hernandez argues a rate of $300 per hour for Tanya E. Moore is reasonable based 8 on her experience practicing law for twenty years and a rate of $115 per hour for paralegals 9 Whitney Law and Isaac Medrano is reasonable given each of their ten years’ experience. Mem. 10 at 13, ECF No. 43-1; Moore Decl. ¶¶ 6–7, 10–11. Defendants do not dispute these rates. Am. 11 Opp’n at 6. Other courts in this district have recently found these rates reasonable for Moore, 12 Law and Medrano and this court sees no reason to find otherwise here. See, e.g., Block v. 13 Narwal, No. 22-00597, 2022 WL 17455502, at *9 (E.D. Cal. Dec. 6, 2022), report and 14 recommendation adopted, No. 22-00597, 2023 WL 2024995 (E.D. Cal. Feb. 15, 2023) (accepting 15 $300 per hour for Moore and $115 per hour for paralegals Law and Medrano as reasonable); 16 Gilbert v. Gsarwar Inc., No. 21-02032, 2022 WL 4245325, at *3 (E.D. Cal. Sept. 15, 2022), 17 report and recommendation adopted, No. 21-02032, 2022 WL 7101283 (E.D. Cal. Oct. 12, 2022) 18 (same). 19 2. Reasonable Hours 20 Next, the court must determine whether the hours plaintiff’s counsel billed litigating this 21 matter are reasonable. “The prevailing party has the burden of submitting billing records to 22 establish that the number of hours it has requested [is] reasonable.” Gonzalez, 729 F.3d at 1202 23 (citation omitted). The court may reduce the hours “where documentation of the hours is 24 inadequate; if the case was overstaffed and hours are duplicated; [or] if the hours expended are 25 deemed excessive or otherwise unnecessary.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 26 1210 (9th Cir. 1986) (citation omitted), amended on denial of reh’g by 808 F.2d 1373 (9th Cir. 27 1987). “[T]he party opposing the fee application has a burden of rebuttal that requires submission 28 of evidence to the district court challenging the accuracy and reasonableness of the hours charged 1 or the facts asserted by the prevailing party in its submitted affidavits.” Hiken v. Dep’t of Def., 2 836 F.3d 1037, 1045 (9th Cir. 2016) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1397–98 3 (9th Cir. 1992)). 4 Defendants argue the hours expended are “markedly unreasonable” and after breaking 5 down the time entries for each billing category, identify several time entries they deem excessive 6 or unnecessary. Am. Opp’n at 7. The court analyzes each billing category below. 7 a) Complaint 8 Hernandez requests 7.3 hours for investigating, preparing and filing the complaint 9 including 5.8 hours for Moore and 1.5 hours for Law. Mem. at 14; Timesheet at 17, Moore Decl. 10 Ex. B, ECF No. 43-3. In response, defendants argue Hernandez used a form complaint with 11 boilerplate language and therefore fees should be reduced to 0.5 hours for Moore and 0.3 hours 12 for Law. Am. Opp’n at 7. Hernandez counters the billed time includes not only time spent 13 drafting the complaint, but also all time spent conducting pre-filing investigative work. Reply at 14 4. 15 The court agrees the complaint in this action is essentially a boilerplate complaint 16 because, while tailored to the facts of this case, overall the complaint is substantially similar to at 17 least two other complaints filed by Moore on behalf of Hernandez against different defendants in 18 separate lawsuits in this district. Compare Am. Compl., with Compl., Hernandez v. ARS Hosp., 19 Inc., No. 20-02390 (E.D. Cal. Dec. 1, 2020), ECF No. 1, and Compl., Hernandez v. Satya Hotels, 20 Inc., No. 20-1242 (E.D. Cal. Aug. 27, 2020), ECF No. 1. Yet, as Hernandez notes, the time 21 entries indicate Moore spent time on tasks aside from just revising the complaint. For example, 22 Moore billed 3.5 hours for an initial site inspection on August 20, 2020, which this court finds 23 reasonable. See Timesheet at 17; see, e.g., Robinson v. Cherokee Times Square, LLC, 24 No. 07-1248, 2009 WL 1657469, at *2 (E.D. Cal. June 12, 2009) (finding 4.2 hours for initial 25 site visit reasonable for similar ADA claim); Moore v. Millenium Acquisitions, LLC, 26 No. 14-01402, 2017 WL 1079753, at *5 (E.D. Cal. Mar. 21, 2017) (acknowledging plaintiff may 27 recover fees for travel time spent on case and awarding 1.2 hours for pre-filing inspection). 28 ///// 1 However, the remaining time entries for Moore indicate she spent an additional 2.3 hours 2 reviewing documents, communicating with the client and revising the complaint. See Timesheet 3 at 17. Given Moore’s experience with filing ADA complaints and the substantially similar nature 4 of this complaint to those filed in prior cases, the court finds a reduction of Moore’s time by 1.3 5 hours is warranted. See Moore Decl. ¶¶ 6–9; see, e.g., Trujillo v. Taco Riendo, Inc., 6 No. 21-01446, 2022 WL 2236932, at *17 (E.D. Cal. June 22, 2022), report and recommendation 7 adopted, No. 21-01446, 2022 WL 3029334 (E.D. Cal. Aug. 1, 2022) (reducing time spent 8 communicating with client, pre-filing investigating, drafting, and reviewing complaint from 3.3 9 hours to 0.5 hours); Trujillo v. Lakhani, No. 17-00056, 2017 WL 1831942, at *7 (E.D. Cal. 10 May 8, 2017) (“[T]ime counsel spent reviewing such boilerplate filings is excessive . . . and .5 11 hours would be a reasonable amount of time for Ms. Moore to spend on preparing, researching, 12 reviewing, and drafting the complaint[.]”). 13 Law’s entries indicate she spent 1.5 hours reviewing materials, drafting a memo, and 14 substantive portions of the complaint. Timesheet at 17. Given the boilerplate nature of the 15 complaint and the overlap of the time Moore spent on related tasks, the court finds a reduction of 16 Law’s time by 1.0 hours is warranted. See, e.g., Taco Riendo, Inc., 2022 WL 2236932, at *17 17 (reducing paralegal pre-filing hours for research, review and drafting from .7 hours to .3 hours). 18 In sum, the court awards Moore 4.5 hours and Law 0.5 hours for time spent on the 19 complaint. 20 b) Clerk’s Defaults and Stipulations 21 Hernandez seeks 4.0 hours for Moore, 0.2 hours for Law and 2.0 hours for Medrano for 22 filing a request for entry of default and for filing stipulations to extend deadlines. Mem. at 14–15; 23 Timesheet at 17–18. Defendants argue the time spent “for defaults that were never entered and 24 never required” is unreasonable and unnecessary. Am. Opp’n at 8. 25 The court is unpersuaded by defendants’ argument that any time billed for filing requests 26 for entry of default is unreasonable. While the Clerk of Court never entered default, two 27 occasions arose in which it was warranted for Hernandez to bill time related to seeking default. 28 First, defendants did not timely respond to the complaint in accordance with the Federal Rules of 1 Civil Procedure, thereby triggering the period during which plaintiff could seek entry of default. 2 See Fed. R. Civ. P. 12(a)(1)(A)(i); Welcome Sacramento LLC Summons Returned, ECF No. 5 3 (served on Dec. 8, 2020); Hotel Circle GL, LLC, Am. Summons Returned, ECF No. 6 (served on 4 Dec. 3, 2020). When this occurred, plaintiff’s counsel contacted defendants to notify them they 5 were in default. See Moore Decl. ¶ 21. Ultimately the parties stipulated to an extension of time 6 for defendants to file their responsive pleadings. See Time Stipulation, ECF No. 7. The time 7 spent drafting default letters and communicating with the defendants regarding their lack of initial 8 response was reasonable. 9 The second occasion arose after the court denied defendants’ motion to dismiss. 10 Following the court’s denial, defendants were required to file their answer within fourteen days 11 after notice of the court’s action. Fed. R. Civ. P. 12(a)(4)(A); see Lopez v. County, No. 16-0218, 12 2016 WL 7391036, at *4 (D. Nev. Dec. 20, 2016). When Hernandez reached out regarding the 13 status of their answer, defendants responded, “there is no status.” Status Emails, Tanya E. Moore 14 Suppl. Decl. Ex. C, ECF No. 49-2. Given defendants’ response and inaction – until plaintiff 15 requested entry of default – the court finds preparing and filing the request for entry of default 16 was reasonable. 17 That said, the court does find some of the time entries related to preparing and filing the 18 stipulation are unreasonably duplicative and excessive given the tasks performed. See Hensley, 19 461 U.S. at 434 (explaining courts should exclude hours that are “excessive, redundant, or 20 otherwise unnecessary”). Specifically, the court will not award time for the following entries: 21 Moore’s 0.3 hour entry on January 15, 2021, to instruct a paralegal to write an email; Moore’s 0.4 22 hour entry on January 19, 2021, to review the two-sentence stipulation; and Medrano’s 0.1 hour 23 entry on January 28, 2021, to review the filed stipulation. Id. at 17; Time Stipulation. 24 Accordingly, the court deducts 0.7 hours for Moore and 0.1 hours for Medrano. See, e.g., 25 Moore, 2017 WL 1079753, at *4–5 (reducing hours billed to attorney as excessive and 26 duplicative of those spent by paralegals). 27 ///// 1 c) Motion to Dismiss 2 For time spent working on opposing defendants’ motion to dismiss, Hernandez seeks 12.5 3 hours for Moore, 13.5 hours for Law and 0.6 hours for Medrano. Mem. at 15. Defendants argue 4 these fees should be reduced, because the opposition “recycle[s]” language from another 5 opposition Moore filed on behalf of Hernandez months earlier in a separate case. Am. Opp’n at 6 8. However, as Hernandez notes in reply, the opposition in the instant case was filed prior to the 7 opposition in that other case. Reply at 4–5; compare MTD Opp’n, ECF No. 12 (filed on Feb. 17, 8 2021), with Opp’n, Hernandez v. ARS Hosp. Inc., No. 20-02390 (E.D. Cal. Apr. 15, 2021) (filed 9 on April 15, 2021). Defendants’ argument in this respect is without merit. 10 The court finds the time billed for opposing the motion to dismiss is reasonable and 11 neither duplicative nor unnecessary. Timesheet at 17–18; cf. Louie v. Carichoff, No. 05-0984, 12 2006 WL 3349521, at *2 n.2 (E.D. Cal. Nov. 16, 2006) (finding it reasonable to expend 27.10 13 hours on motion to dismiss). 14 d) Joint Scheduling Report and Meet and Confer 15 Hernandez seeks 4.7 hours for Moore, 2.8 hours for Law, and 2.4 hours for Medrano for 16 Rule 26 meet and confer requirements, preparing the initial joint scheduling report, and attending 17 the required Rule 16 scheduling conference. Mem. at 15; Timesheet at 17–20. Defendants argue 18 the rates for Moore should be reduced because the joint scheduling report “is a form document 19 Moore has prepared hundreds of times.” Am. Opp’n at 8. Hernandez argues in reply that the 4.7 20 hours for Moore included more than merely completing the joint scheduling report. Reply at 4. 21 The court agrees the 4.7 hours Moore billed are not compensable as time spent on the joint 22 scheduling report given the clerical and administrative nature of some of the entries. Specifically, 23 the court will not award Moore’s 0.3 hour entry on October 11, 2021, for making an unanswered 24 call or Moore’s 0.1 hour entry on March 1, 2022, for “attention to lack of response” from 25 defendants’ counsel. Timesheet at 18, 19; see also Block v. Christian, No. 16-00650, 26 2017 WL 5248402, at *9 (E.D. Cal. Nov. 13, 2017), report and recommendation adopted, 27 No. 16-00650, 2017 WL 6350773 (E.D. Cal. Dec. 13, 2017) (reducing fees for forwarding and 28 reviewing emails and making phone calls that went unanswered). 1 In sum, the court will award 4.3 hours for Moore, 2.8 hours for Law and 2.4 hours for 2 Medrano. 3 e) VDRP 4 For preparing for VDRP, meeting and conferring, and attendance at the VDRP session, 5 Hernandez seeks 10.7 hours for Moore, 1.1 hours for Law and 1.2 hours for Medrano. Mem. at 6 10; Timesheet at 18–19. Defendants do not dispute any of the hours spent in the VDRP category 7 and after reviewing the billing entries the court finds the hours reasonable. 8 f) Site Inspection 9 Hernandez seeks 12.5 hours for Moore, 2.4 hours for Law and 1.3 hours for Medrano for 10 time spent preparing for and overseeing a site inspection during which a Certified Access 11 Specialist (CASp) visited the facility to identify all barriers to access. Mem. at 15–16; Timesheet 12 at 18–20. Defendants argue Moore should not be awarded travel time because there was no need 13 for Moore to attend the inspection. Am. Opp’n at 8–9. In reply, Moore argues her presence at the 14 inspection was necessary as she “had to insist that [p]laintiff’s expert be allowed to inspect all 15 purportedly accessible guestrooms.” Moore Suppl. Decl. ¶ 5. 16 While other courts previously have reduced the hours Moore has expended when she 17 spent significant time driving to perform a site visit, here there was a justifiable benefit to her 18 presence for the total time billed. The court finds it reasonable to award time for the hours Moore 19 spent traveling. Compare Hernandez v. BMV Hotels, LP, No. 18-07511, 2021 WL 5053491, at 20 *4 (N.D. Cal. Apr. 14, 2021) (reasoning Moore’s 7.5 hour site visit and 2 hours of travel time was 21 reasonable), with Gilbert v. HBA Enterprises, Inc., No. 21-01358, 2022 WL 2663761, at *18 22 (E.D. Cal. July 11, 2022), report and recommendation adopted, No. 21-01358, 2022 WL 23 3327461 (E.D. Cal. Aug. 11, 2022) (disallowing 2 hours Moore expended “for travel related to 24 the site inspection” because there was “no discernible benefit or substantive information . . . that 25 reflects the usefulness of this site visit by counsel”). 26 g) Amending Complaint 27 For time spent amending the complaint, Hernandez seeks 0.8 hours for Moore and 4.0 28 hours for Law. Mem. at 16; Timesheet at 20, 21. Hernandez indicates “the cost was reduced by 1 having most of the work done by a paralegal.” Mem. at 16. Defendants argue despite this, 2 charging 4.8 hours is unreasonable to add “items from [p]laintiff’s CASp report into a 3 paragraph.” Am. Opp’n at 10. Hernandez argues this characterization is inaccurate because “the 4 amendment identified dozens of violations in many subparts, spanning nine pages.” Reply at 6. 5 A review of the record shows Hernandez is correct. See generally First Am. Compl. Because the 6 amended complaint was substantially modified from the original and injunctive relief was still in 7 dispute at the time, the court finds the hours expended in this category are reasonable and no 8 reduction is necessary. Cf. Gilbert v. Dollar Tree Stores, Inc., No. 21-01640, 2023 WL 7736500, 9 at *7 (E.D. Cal. Nov. 15, 2023) (finding “some reduction in fees appropriate [for amending the 10 complaint] because [p]laintiff’s proposed amendment was minor and uncontested”). 11 h) Discovery 12 For discovery related tasks, Hernandez seeks 83.5 hours: 57.2 hours for Moore, 25.5 hours 13 for Law, and 0.8 hours for Medrano. Mem. at 16; Timesheet at 17–23. Defendants argue these 14 hours are “unreasonable for routine discovery” and specifically challenge the time Moore billed 15 for the deposition of defendants’ CASp expert, Gary Layman, which “never went forward,” the 16 time Moore spent preparing for the deposition and the 0.3 hours Moore billed for a “two sentence 17 email.” Am. Opp’n at 9. 18 First, the court finds Hernandez does not provide adequate documentation to warrant 19 granting the full 11.5 hours Moore billed on December 21, 2022, the day of Layman’s scheduled 20 deposition. See Timesheet at 22; see also Chalmers, 796 F.2d at 1210 (noting a court can reduce 21 hours “where documentation of the hours is inadequate”). While the time entries indicate 22 defendants’ counsel did not promptly respond to requests for dates for the Layman deposition and 23 the time entries show Hernandez’s counsel prepared the notice and subpoena for the deposition 24 on December 16, 2022, see Timesheet at 22, it is not clear when Layman was subpoenaed to 25 attend, see Fed. R. Civ. P. 30(a)(1), or if defendants received reasonable written notice, see Fed. 26 R. Civ. P. 30 (b)(1). Hernandez does provide a credit card sale showing service of a subpoena on 27 Layman was charged to Moore’s firm, but the receipt is dated January 4, 2023, after the 28 deposition was allegedly supposed to occur on December 21, 2022. Layman Subpoena Receipt, 1 Moore Decl. Ex. E, ECF No. 43-3; Timesheet at 22. Defendants contend they “did not even 2 know about” the deposition set for December 21, 2022. Am. Opp’n at 9. Instead of responding 3 to this argument with proof counsel had adequately alerted the appropriate parties, Hernandez 4 contends “[t]he time entries speak for themselves.” Reply at 5. Because the court finds 5 otherwise, and plaintiff has the burden here, the court will deduct the 8.0 hour time entry Moore 6 billed on December 21, 2022, for “losing the entire day to no show,” and the 1.0 hour time entry 7 Moore billed the same day for waiting for the witness to appear. Timesheet at 22; see also 8 Hernandez v. MRVS Enterprises Inc., No. 21-06441, 2023 WL 8720138, at *7 (N.D. Cal. 9 Dec. 18, 2023) (declining to award Moore eight hours for deposition canceled the day before and 10 finding “[h]er insistence she could not use the time to perform other work [] not credible”). 11 Second, defendants claim the time Moore spent preparing for the deposition was 12 unreasonable. Am. Opp’n at 9. Courts in this circuit have found a ratio of roughly two hours 13 preparation for every hour of deposition to be reasonable. See, e.g., Smith v. Gen. Info. Servs., 14 Inc., No. 117-00542, 2019 WL 2106171, at *3 (E.D. Cal. May 14, 2019) (awarding fees for 30 15 hours preparation for 13.2 hours of depositions). Here, while the date for the deposition was not 16 well documented as discussed above, defendants effectively concede the parties did agree to a 17 date for Layman’s deposition. See Am. Opp’n at 9 (noting “the parties agreed to a different 18 date”). While the deposition ultimately never occurred given that the case settled, the court finds 19 the very modest 2.5 hours Moore spent preparing for the deposition reasonable. 20 Third, defendants challenge a billing entry on December 14, 2022, for 0.3 hours for 21 Moore’s sending an email confirming the date and time for a meet and confer. Am. Opp’n at 9. 22 While the court finds this time spent corresponding with opposing counsel is reasonable, the court 23 finds several other entries Moore entered in the discovery billing category are excessive or 24 duplicative of some of Law’s entries. Timesheet at 22; Missouri v. Jenkins by Agyei, 491 U.S. 25 274, 288 n.10 (1989) (reducing fees for clerical or secretarial tasks); Christian, 2017 WL 26 5248402, at *9 (reducing fees for reviewing and forwarding emails); Kalani v. Statewide 27 Petroleum, Inc., No. 13-02287, 2014 WL 4230920, at *4–5 (E.D. Cal. Aug. 25, 2014) (reducing 28 fees where experienced attorney performed simple tasks and where same task was billed across 1 multiple entries). Specifically, the court applies a reduction for the following entries: Law’s 0.4 2 hour entry on April 8, 2022, for time spent reviewing a scheduling order and calendaring 3 deadlines, which the court reduces to 0.1 hours; Moore’s 0.1 hour entry on May 24, 2022, for 4 instruction to Law, which the court reduces by 0.1 hours as unnecessary and duplicative; Moore’s 5 0.3 hours entry on June 3, 2023, for reviewing correspondence with Stillman, which the court 6 reduces by 0.3 hours as duplicative of work completed the day prior; Moore’s 1.5 hours entry on 7 June 5, 2022, which the court reduces by 1.2 hours as duplicative of an entry billed by Law the 8 next day. Timesheet at 20-22. 9 In sum, the court reduces Moore’s time in this category by 10.6 hours and Law’s time by 10 0.3 hours. 11 i) Efforts to Reach Settlement Agreement 12 For time spent discussing settlement, Hernandez seeks 12.6 hours for Moore and 8.2 hours 13 for Law. Mem. at 16; Timesheet at 17–18, 22–24. Hernandez claims this time was spent 14 preparing multiple settlement agreements, communicating with defense counsel, and attempting 15 to resolve claims for attorney’s fees and costs. Mem. at 16. Defendants argue the time billed is 16 unreasonable and unnecessary because most of the time was “accumulated by one or two 17 sentence emails.” Am. Opp’n at 9. In reply, Hernandez contends the time entries “speak for 18 themselves.” Reply at 5. The court agrees with Hernandez here and finds the time billed for 19 efforts to reach a settlement agreement reasonable. 20 j) Finalizing Settlement 21 Hernandez also seeks additional hours for the time Moore, Law and Medrano spent 22 finalizing the settlement agreement. Specifically, Hernandez seeks 1.8 hours for Moore, 1.7 23 hours for Law and 0.5 hours for Medrano. Mem. at 16–17; Timesheet at 23–24. Defendants 24 concede some time is necessary to spend finalizing the settlement agreement but argue the 25 timesheets are “padded” with excessive entries. Am. Opp’n at 10. In response, Hernandez 26 contends the numerous entries would not have accrued if defendants had provided their signatures 27 in a timely manner. Reply at 6. 28 ///// 1 Given the extended period it took for the parties to finalize and sign the settlement 2 agreement, entries for time spent emailing opposing counsel are reasonable. Timesheet at 23–24. 3 However, the court finds a reduction is warranted based on two overlapping time entries. 4 Specifically, the court will not award the 0.3 hours Moore billed on June 26, 2023, for preparing 5 the stipulation for dismissal, because Medrano had previously billed 0.3 hours for the exact same 6 task on February 17, 2023. Timesheet at 24; see also Taco Riendo, Inc., 2022 WL 2236932, at 7 *17 (reducing time spent on duplicative tasks). 8 In sum, the court reduces Moore’s time in this category by 0.3 hours. 9 k) Motion for Summary Judgment 10 While Hernandez never filed a motion for summary judgment, he still seeks 3.0 hours for 11 Moore and 0.4 hours for Law for the time they spent preparing to file the motion. Mem. at 17; 12 Timesheet at 22–24. Defendants argue no motion was necessary because the parties had agreed 13 upon injunctive relief. Am. Opp’n at 10. In reply, Hernandez argues the hours were reasonable 14 and necessary at the time due to the approaching dispositive motion deadline. Reply at 6. Moore 15 declares she only did “the minimum work required on the motion,” Moore Decl. ¶ 33, and all 16 work on the motion stopped as soon as a tentative settlement was reached in late December 2022, 17 Reply at 6; Timesheet at 22–24. Further, Moore declares the work was necessary given 18 defendants’ nearly three month delay in returning the signed settlement agreement. Moore Decl. 19 ¶ 33; Reply at 6. 20 The court finds awarding fees for time spent on the unfiled motion is reasonable in this 21 case given the circumstances. See Block v. Starbucks Corp., No. 115-00991, 2018 WL 4352906, 22 at *13 (E.D. Cal. Sept. 11, 2018) (“[T]ime billed for preparing and filing the motion for summary 23 judgment is reasonable because the motion was an important step toward the ultimate settlement 24 here.”); see also Charlebois v. Angels Baseball LP, 993 F. Supp. 2d 1109, 1125 (C.D. Cal. 2012) 25 (collecting cases). 26 l) CCDA Report 27 For time spent reporting to the California Commission on Disability Access (CCDA), 28 Hernandez seeks 1.0 hour for Moore and 0.3 hours for Medrano. Mem. at 17; Timesheet at 17, 1 24. Defendants assert no time should be awarded in this category because this was a form report 2 and Moore made a duplicate entry. Am. Opp’n at 7. 3 The Ninth Circuit holds it is unreasonable “for a lawyer to bill, at her regular hourly rate, 4 for tasks that a non-attorney employed by her could perform at a much lower cost.” Davis v. City 5 of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), opinion vacated in part on other grounds 6 on denial of reh’g, 984 F.2d 345 (9th Cir. 1993). Furthermore, when billing legal fees, “purely 7 clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs 8 them.” Missouri, 491 U.S. at 288 n.10. Here, the court finds there is insufficient evidence to 9 determine the CCDA report is clerical in nature and therefore does not find the hours billed for 10 the report unreasonable. See Johnson v. Xinliang Bai, No. 16-1698, 2017 WL 3334006, at *3 11 (E.D. Cal. Aug. 4, 2017) (finding similarly); but see Gsarwar Inc., 2022 WL 4245325, at *4 12 (preparing and submitting report on CCDA portal is a clerical task). Accordingly, the court does 13 not make any deductions for this category. 14 m) Motion for Attorney’s Fees and Costs 15 For preparing the instant motion, Hernandez seeks 8.2 hours for Moore, 16 hours for Law 16 and 0.1 hours for Medrano. Mem. at 17; Timesheet at 23–24. Defendants argue these hours are 17 duplicative and unnecessary given the “routine and repetitive form motions” Moore uses. Am. 18 Opp’n at 10. Specifically, defendants claim the instant motion is identical to the motion for 19 attorney’s fees and costs Moore filed on behalf of another client. See Att’y Mot., Gilbert, 20 No. 22-00117 (E.D. Cal. Sept. 5, 2023), ECF No. 30. 21 However, the motion for attorney’s fees and costs filed in Gilbert was filed after the 22 motion for attorney’s fees in the instant case. Compare id. (filed on September 5, 2023), with 23 Mot. (filed on August 28, 2023). While the motion here does not present any novel issues, after 24 reviewing the relevant billing records, the court finds the hours billed are not duplicative but 25 rather are reasonable particularly given the time-consuming task of reviewing billing time and 26 expense entries related to this case in particular. Cf., BMV Hotels, LP, 2021 WL 5053491, at *6 27 (awarding 9.2 hours for Moore and 15.3 hours for Law for time spent working on motion for 28 attorney’s fees). 1 Hernandez also seeks fees for hours spent defending this motion. Specifically, Hernandez 2 seeks 4.9 hours for Moore and 11.5 hours for Law for the time they spent addressing defendants’ 3 ex parte request for additional time to oppose the motion and for preparing the reply brief. Reply 4 at 7. While Hernandez does not differentiate the time spent working on the ex parte opposition 5 compared to the reply, given the numerous discrete challenges defendants raised in their 6 opposition, the court finds these hours reasonable. Cf., BMV Hotels, LP, 2021 WL 5053491, at 7 *6 (finding 4.5 hours Moore and 10.6 hours Law spent working on reply reasonable); Kalani v. 8 Starbucks Corp., No. 13-00734, 2016 WL 379623, at *9 n.6 (N.D. Cal. Feb. 1, 2016) (finding 9 hours spent working on reply reasonable given number of objections raised). 10 Based on the above, the court awards Hernandez 126.4 hours for Moore ( $300 hourly 11 rate) and paralegal time comprising 87.5 hours for Law ($115.00 hourly rate) and 9.1 hours for 12 Medrano ($115.00 hourly rate) for a total of $49,029.00 in attorney fees. The final lodestar 13 figures, showing the requested, adjusted and awarded amount is summarized in the chart below. 14 Requested Adjusted Awarded Billing Category Amount Amount Amount Moore 5.8 hours Moore -1.3 hours Moore 4.5 hours Complaint Law 1.5 hours Law -1.0 hours Law 0.5 hours Moore 4 hours Moore -0.7 Moore 3.3 hours Clerk’s Defaults and Law 0.2 hours Law 0.0 Law 0.2 hours Stipulations Medrano 2 hours Medrano -0.1 Medrano 1.9 hours Moore 12.5 hours No adjustment Full amount Motion to Dismiss requested Law 13.5 hours Medrano 0.6 hours Moore 4.7 hours Moore -0.4 hours Moore 4.3 hours Joint Scheduling Law 2.8 hours Law 0.0 hours Law 2.8 hours Report/Meet and Confer Medrano 2.4 hours Medrano 0.0 hours Medrano 2.4 hours Moore 10.7 hours No adjustment Full amount VDRP requested Law 1.1 hours Medrano 1.2 hours Site Inspection Moore 12.5 hours No adjustment Full amount requested Law 2.4 hours Medrano 1.3 hours Amending Complaint Moore 0.8 hours No adjustment Full amount requested Law 4 hours Discovery Moore 57.2 hours Moore -10.6 hours Moore 46.6 hours Law 25.5 hours Law -0.3 hours Law 25.2 hours Medrano 0.8 hours Medrano 0.0 hours Medrano 0.8 hours Efforts to Reach Settlement Moore 12.6 No adjustment Full amount requested Agreement Law 8.2 Finalizing Settlement Moore 1.8 hours Moore -0.3 hours Moore 1.5 hours Law 1.7 hours Law 0.0 hours Law 1.7 hours Medrano 0.5 hours Medrano 0.0 hours Medrano 0.5 hours Motion for Summary Moore 3 hours No adjustment Full amount requested Judgment Law 0.4 hours CCDA Reporting Moore 1 hour No adjustment Full amount requested Medrano .3 hours Motion for Fees and Costs Moore 8.2 hours No adjustment Full amount requested Law 16 hours Medrano 0.1 hours Defending Motion for Fees Moore 4.9 hours No adjustment Full amount requested and Costs Law 11.5 hours Total Amount Awarded: Moore 126.4 hours Law 87.5 hours Medrano 9.1 hours 1 3. Costs 2 Hernandez also seeks $10,788.77 in costs and litigation expenses, including $9,125.00 in 3 total for a Certified Access Specialist (CASp) to inspect the facility, prepare a report identifying 4 all barriers to access, and then later update the findings from the site inspection. Mem. at 19–20; 5 Moore Decl. ¶¶ 17–18; CASp Invoices, Moore Decl. Exs. G, H, ECF No. 43-3. 1 Costs generally are awarded to the prevailing party in a civil action as a matter of course 2 unless the court directs otherwise. Fed. R. Civ. P. 54(d). The court must limit an award of costs 3 to those defined in 28 U.S.C. § 1920 unless otherwise provided for by statute. Grove v. Wells 4 Fargo Fin. Cal., Inc., 606 F.3d 577, 579–80 (9th Cir. 2010). The ADA authorizes a prevailing 5 party to recover “out-of-pocket expenses incurred by an attorney which would normally be 6 charged to a fee-paying client[.]” Chalmers, 796 F.2d at 1216 n.7; see also Johnson v. Wen Zhi 7 Deng, No. 15-02698, 2019 WL 1098994, at *4 (E.D. Cal. Mar. 8, 2019). 8 At the outset, defendants argue all costs should be denied because Hernandez did not 9 timely file a bill of costs. Am. Opp’n at 11. To support this argument, defendants rely on a 10 Central District of California case, in which the court declined to award costs where the plaintiff 11 had not timely filed a bill of costs as required under Central District of California Local Rule 54- 12 2.1. See Am. Opp’n at 11 (citing Kline v. J2 Glob., Inc., No. 19-00667, 2019 WL 4137617, at *1 13 (C.D. Cal. May 8, 2019)). The local rules for the Central District of California are inapplicable in 14 the Eastern District of California. Moreover, the parties here stipulated plaintiff’s motion for 15 attorney’s fees and costs should be filed by August 28, 2023. Dismissal Stipulation at 2. The 16 court agreed to retain jurisdiction over the motion and accepted the deadline set by the parties. 17 Min. Order (July 17, 2023), ECF No. 42. Hernandez filed the instant motion on August 28, 2023, 18 and it is therefore timely. 19 In the alternative, defendants argue the fee for Hernandez’s CASp expert is unreasonable. 20 Am. Opp’n at 9. To support this argument, defendants demonstrate that in contrast to the 21 $9,125.00 Hernandez paid his CASp expert, defendants only paid its CASp expert $2,200.00 for 22 the exact same inspection. Id.; Def. CASp Invoice, Phillip H. Stillman Decl. Ex. 3, ECF No. 48- 23 1. In response, Hernandez argues defendants’ CASp expert only prepared a 15-page report while 24 Hernandez’s expert prepared a 164-page report and attaches the two reports for comparison. 25 Reply at 5; Moore Suppl. Decl. Exs. A–B. According to Hernandez, the difference in work 26 product demonstrates Hernandez paid a fair price and the CASp expert’s report allowed him to 27 obtain “full and complete injunctive relief.” Id. 1 Under the ADA, costs are awarded for CASp inspections, but the costs must be 2 reasonable. See, e.g., Christian, 2017 WL 5248402, at *9 (awarding $5,673.94 in costs for court 3 filing fee, cost of service, fees for two site inspections). Hernandez bears the burden of 4 establishing the costs are reasonable. Here, Hernandez has not met his burden of showing the full 5 amount he requests is justified. 6 First, the two invoices Hernandez provides do not allow the court to determine whether 7 the total cost was reasonable. The first invoice seeks $8,000.00 for “Travel, Survey and Draft 8 report” and the second invoice seeks $1,125.00 for “Update[] of Draft Report to Expert Report.” 9 CASp Invoices, Moore Decl. Exs. G–H, ECF No. 43-3. Hernandez claims he relied on the first 10 report in amending his complaint to allege the existence of all barriers and to obtain full 11 injunctive relief. Moore Decl. ¶ 17. Given this, it is unclear why the work charged under the 12 second invoice was necessary and the court declines to award any of the costs attributed to this 13 second invoice. 14 It is clear that Hernandez’s expert report is much more thorough than defendants’ expert 15 report, although without more information the court cannot determine whether the full $8,000.00 16 the expert charged is reasonable. The expert’s invoice is not itemized in a way that allows the 17 court to determine how much time was spent conducting the site inspection or traveling to and 18 from the facility or working on the report, although all this kind of time would be compensable. 19 Hopson v. Singh, No. 16-3014, 2019 WL 4298040, at *5 (E.D. Cal. Sept. 11, 2019), report and 20 recommendation adopted, No. 16-03014, 2019 WL 4747791 (E.D. Cal. Sept. 30, 2019). It also is 21 not possible to discern the expert’s hourly rate from the invoice. Given the heft of the report 22 compared to the defendant’s expert’s report the court will award $5,000.00 for Hernandez’s 23 CASp expert’s work. 24 The court declines to award the Talty Court Reporter fee for the “no show” deposition on 25 December 21, 2022, given the lack of supporting documentation that the appropriate parties 26 received adequate notice for the deposition as discussed above. See Court Reporter Invoice, 27 Moore Decl. Ex. I, ECF No. 43-3. The court finds the remaining costs are compensable and 28 reasonable. 1 Accordingly, the court awards Hernandez $6,209.77 in costs and litigation expenses. 2 IV. CONCLUSION 3 Based on the foregoing, the court awards $49,029.00 in attorney fees and $6,209.77 in 4 costs and litigation expenses. Defendants shall pay these amounts to plaintiff within 30 days of 5 the filed date of this order. 6 This order resolves ECF No. 43. 7 IT IS SO ORDERED. 8 DATED: October 15, 2024.