FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JAMES SHAYLER, an individual, No. 21-56130
Plaintiff-Appellant, D.C. No. 2:20-cv-10751-GW-GJS v.
1310 PCH, LLC, a California Limited OPINION Liability Company,
Defendant-Appellee.
Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding
Submitted August 31, 2022 * Pasadena, California
BEFORE: MILAN D. SMITH, JR. and RYAN D. NELSON, CIRCUIT JUDGES, and GERSHWIN A. DRAIN, ** DISTRICT JUDGE.
Opinion by Judge Milan D. Smith, Jr.
* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation.> SUMMARY ***
Americans with Disabilities Act / Attorney’s Fees
The panel affirmed the district court’s order awarding a reduced amount of attorney’s fees and costs following the district court’s grant of summary judgment in favor of the plaintiff on a claim under the Americans with Disabilities Act.
The plaintiff, a serial ADA litigant, moved for an award of over $34,000 in attorney’s fees and costs under 42 U.S.C. § 12205. The district court reduced this award significantly, finding that factors such as the routine nature of the work performed by the plaintiff’s attorneys and the lack of meaningful opposition by the defendants warranted the use of a $300/hour “blended billing rate” for all the work performed by counsel, as well as a 65% downward multiplier to the total amount of fees.
The panel held that the district court provided an adequate “concise but clear explanation” of the grounds for its decision and did not abuse its broad discretion because, given the repetitive nature of high-frequency ADA litigation, there was nothing irrational about the district court’s conclusions that, in effect, much of the work here could have been performed by junior associates or even paralegals, or that much of the motion practice in the case was superfluous.
COUNSEL
Anoush Hakimi and Kyle W. Wilson, Law Office of Hakimi & Shahriari, Los Angeles, California, for Plaintiff-Appellant.
Jeffrey C. Bogert, Law Offices of Jeffrey C. Bogert, Los Angeles, California, for Defendant-Appellee.
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. M. SMITH, Circuit Judge:
Plaintiff James Shayler, a serial Americans with Disabilities Act (ADA)
litigant, has sued defendant 1310 PCH LLC (PCH) for violating the ADA and
similar protections under California law. The lawsuit was largely uncontested by
PCH, and resulted in summary judgment in Shayler’s favor on the ADA claim.
After prevailing on the merits, Shayler moved for an award of over $34,000 in
attorney’s fees and costs. The district court reduced this award significantly,
finding that factors such as the routine nature of the work performed by Shayler’s
attorneys and the lack of meaningful opposition by PCH warranted the use of a
$300/hour “blended billing rate” for all the work performed by Shayler’s counsel,
as well as a 65% downward multiplier to the total amount of fees. Ultimately, the
district court awarded just under $10,000 in fees and costs. Shayler appeals,
arguing that this downward reduction was unjustified. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Serial ADA Litigants
Congress passed the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq., in order to “provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.” 42
2 U.S.C. § 12101(b)(1). “The ADA satisfied the need for meaningful legislation for
the protection of individuals with disabilities; however, one of the unforeseen
consequences of this statute was the widespread abuse taking form due to the
actions of serial ADA plaintiffs.” Phoebe Joseph, Note, An Argument for
Sanctions Against Serial ADA Plaintiffs, 29 U. Fla. J.L. & Pub. Pol’y 193, 195
(2019).
A private plaintiff suing under the ADA may recover injunctive relief and
attorney’s fees (plus costs), but not monetary damages. See 42 U.S.C. § 2000a-
3(a)-(b). Despite this limitation, the ability to recover attorney’s fees has given rise
to a wave of “get-money quick” lawsuits brought by a small number of
professional, serial plaintiffs. Joseph, 29 U. Fla. J.L. & Pub. Pol’y at 196. A
district judge in this circuit has explained the phenomenon like this:
The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violations, and attempting to remedy the matter through conciliation and voluntary compliance, a lawsuit is filed . . . . Faced with the specter of costly litigation and a potentially fatal judgment against them, most businesses quickly settle the matter.
Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 863 (C.D. Cal. 2004)
(cleaned up); see also Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1281-
82 (M.D. Fla. 2004) (noting that, in ADA cases, “pre-suit settlements do not vest
3 plaintiffs’ counsel with an entitlement to attorney’s fees,” and that the “current
ADA lawsuit binge is . . . driven by . . . the economics of attorney’s fees”).
To make matters worse, California’s Unruh Civil Rights Act, Cal. Civ. Code
§ 51(f), and the California Disabled Persons Act (CDPA), Cal Civ. Code § 54(c),
create private rights of action under state law whenever there has been an ADA
violation, and a plaintiff suing for such a violation can recover monetary damages.
See, e.g., Arroyo v. Rosas, 19 F.4th 1202, 1206 (9th Cir. 2021) (noting that the “net
practical consequence” of this statutory confluence “is to create a state law cause
of action that permits, for California-based ADA claims, a damages remedy that is
not available under the ADA”); Molski, 347 F. Supp. 2d at 862-63. California has
attempted to limit abusive lawsuits under these statutes by imposing stricter
procedural requirements and higher filing fees on “high-frequency litigant[s]” in
state court. Arroyo, 19 F.4th at 1207 (citing Cal. Civ. P. Code § 425.55).
However, plaintiffs can circumvent the restrictions on high-frequency litigants by
filing their complaints in federal court, asserting federal question jurisdiction over
the ADA claim and supplemental jurisdiction over the state-law claims. Id. In
light of this procedural oddity, the number of ADA cases in the Central District of
California (where this case originated) has ballooned from 3 percent of its civil
docket to roughly 20 percent in recent years. Id.
4 A hallmark of abusive ADA litigation is the use of form complaints
containing a multitude of boilerplate allegations of varying merit. See, e.g., Cal
Civ. P. Code § 425.55(a)(2) (finding that “these lawsuits are frequently filed
against small businesses on the basis of boilerplate complaints, apparently seeking
quick cash settlements rather than correction of the accessibility violation”); Peters
v. Winco Foods, Inc., 320 F. Supp. 2d 1035, 1040-41 (E.D. Cal. 2004) (noting
plaintiff’s history of filing “form complaints” and “multiplicitous [sic] ‘off the
shelf’ filings of questionable merit”); Joseph, 29 U Fla. J.L. & Pub. Pol’y at 197
(describing “cookie-cutter lawsuits” with “similar or even identical complaints”
(citations omitted)). The ability to file essentially the same complaints over and
over again, combined with the hope of intimidating the defendant into an early
settlement (or of obtaining a default judgment), allows for a quick recovery of
attorney’s fees with relatively minimal difficulty. See, e.g., Molski, 347 F. Supp.
2d at 863 (describing “cottage industry” of ADA litigants filing lawsuits
“requesting damage awards” under state law “that would put many of the targeted
establishments out of business” (citation omitted)); Steven Brother v. Tiger
Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D. Fla. 2004) (describing ADA
“shotgun litigation,” where “the same plaintiffs file hundreds of lawsuits”).
5 II. Shayler’s Case
In November 2020, Shayler sued PCH for ADA and Unruh Act violations,
seeking injunctive relief and attorney’s fees as well as monetary damages for the
Unruh Act claim. The gravamen of the complaint was that PCH owned a property
that failed to comply with regulatory requirements regarding accessible parking
spaces. At a scheduling conference early in the case, the district court identified
Shayler as a “high-frequency litigant” as defined in Cal Civ. P. Code § 425.55(b).
The district court later declined to exercise supplemental jurisdiction over the
Unruh Act claim, though Shayler’s amended complaint “[i]nexplicably” continued
to allege it.
About 8 months into the case, Shayler moved for summary judgment. PCH
filed a notice of non-opposition to the motion, but Shayler filed a reply brief
anyway. The district court granted summary judgment to Shayler on the ADA
claim and awarded injunctive relief, but declined to award damages pursuant to the
Unruh Act based on its earlier jurisdictional ruling.
Shortly thereafter, Shayler moved for $31,714 in attorney’s fees plus $3,185
in costs, for a total award of $34,899. This was based on the work of four
attorneys with different hourly rates. The district court broke down the attorney’s
fees request as follows:
6 The district court found that both the hourly rates for the attorneys and the time
spent by the attorneys on the case were unreasonable based on the record before it.
First, while acknowledging the attorneys’ experience, the district court
explained that “these relatively straightforward ADA actions often include
boilerplate filings and rarely involve complex legal issues or any difficult factual
discovery. Plaintiff’s counsel appear to involve two partner-level attorneys for
tasks that could have been performed by paralegals or low level associates at
substantially lower rates and [with] review[] by an attorney.” The district court
then “elect[ed] to join several other courts in the Central District by adopting a
blended rate of $300 [per hour] that is more commensurate with the complexity
level of these ADA cases,” citing other recent district court decisions that have
applied a $300/hour rate to work performed in similar cases.
Second, the court found that Shayler’s lawyers had “devoted an
unreasonable amount of time on several tasks that should have been done more
efficiently” in light of their experience. For example, the district court found that
spending 9 hours on filing the complaint was “excessive” because Shayler’s
7 counsel “often . . . files nearly identical complaints . . . in scores of ADA cases.”
The district court was also flummoxed by the fact that Shayler’s counsel had spent
17 hours on the unopposed motion for summary judgment, which included 7 hours
expended after PCH had notified the court of its non-opposition.1 After noting
other questionable litigation tactics and reiterating that this was a “straightforward”
ADA case, the district court then noted that roughly two-thirds of the hours
expended by Shayler’s attorneys on the case were accrued after PCH had admitted
fault.
In light of “the relatively straightforward and repetitive nature of these ADA
actions, the fact that [Shayler]’s counsel recorded most of their hours after [PCH]
admitted fault and sought to minimize cost, and the number of litigation efforts of
counsel which were . . . simply wrong or unnecessary (and which [constitute] a
majority of [Shayler]’s counsel’s efforts),” the district court applied “a downward
65% multiplier to the requests for fees.” Using a blended rate of $300/hour, 75.2
hours of attorney work, and the 65% downward multiplier, the district court
calculated the final award of attorney’s fees as $7,896, which was substantially less
than the $31,185 sought by Shayler. The district court also reduced Shayler’s
1 The district court indicated that it was “subtracting” hours for time spent on the complaint and summary judgment motion to arrive at more reasonable time figures. However, the district court did not expressly indicate how these subtractions factored into its ultimate calculation, which still used all 75.2 hours claimed by Shayler as a baseline before applying a 65% downward multiplier, as explained below.
8 award of costs from $3,185 to $1,955, finding that Shayler’s request to reimburse
costs for a site inspector were unsupported by invoices or a reasonable explanation
of the inspector’s importance to the case. This resulted in a total award of $9,851,
as compared to the $34,899 Shayler had requested. Shayler timely appealed the
award.
STANDARD OF REVIEW
In ADA cases, a prevailing plaintiff may recover “a reasonable attorney’s
fee.” 42 U.S.C. § 12205. A “reasonable attorney’s fee” is initially determined by
the lodestar method, which multiplies an attorney’s reasonable hourly rate by the
number of hours reasonably expended on the litigation, though this amount can be
adjusted upward or downward based on other factors. Machowski v. 333 N.
Placentia Prop., LLC, 38 F.4th 837, 840-41 (9th Cir. 2022). We review an award
of attorney’s fees under the ADA for abuse of discretion, while reviewing de novo
any legal questions underlying the fee award. Vogel v. Harbor Plaza Ctr., LLC,
893 F.3d 1152, 1157 (9th Cir. 2018).
“The district court has a great deal of discretion in determining the
reasonableness of the fee and, as a general rule, we defer to its determination,
including its decision regarding the reasonableness of the hours claimed by the
prevailing party.” Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992); see
also Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986),
9 amended, 808 F.2d 1373 (9th Cir. 1987) (“The district court is in the best position
to determine in the first instance the number of hours reasonably expended in
furtherance of the successful aspects of a litigation and the amount which would
reasonably compensate the attorney.”). However, a court abuses its discretion
when it fails to identify “the correct legal rule to apply to the relief requested” or
applies the correct rule in a way that is illogical, implausible, or unsupported by the
facts. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
ANALYSIS
Shayler challenges both the district court’s use of a blended billing rate and
its use of a 65 percent downward multiplier.2 Most of his briefing is directed to
arguing that the district court inadequately explained its reasons for the billing rate
and the multiplier. That approach is understandable because we have not
categorically foreclosed the use of blended billing rates or downward multipliers,
saying only that these approaches to calculating a fee award must be adequately
explained. See, e.g., Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1111 (9th
2 Shayler’s opening brief also challenges the district court’s refusal to reimburse the cost of the site inspector. Specifically, he argues that the district court’s finding that the need for an inspector was “unnecessary” was “unsupported by the factual record.” But the district court also denied the reimbursement request simply because “[Shayler] ha[d] not submitted a bill/invoice from the [inspector].” Shayler does not dispute this fact or argue that the district court’s reliance on it was improper. Consequently, any challenge to the reduction in the award of costs is waived. See, e.g., Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).
10 Cir. 2014) (vacating fee award because district court failed to explain why it used a
$325/hour blended billing rate); Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d
1041, 1045 (9th Cir. 2000) (upward and downward multipliers are permissible, but
must be justified).
Even so, the district court was not required to write the equivalent of a law
review article justifying its fee award; it only had to provide a “concise but clear
explanation” of the grounds for its decision. Hensley v. Eckerhart, 461 U.S. 424,
437 (1983); Jankey v. Poop Deck, 537 F.3d 1122, 1133 (9th Cir. 2008) (applying
this standard in ADA case); see also Gates, 987 F.2d at 1398 (9th Cir. 1992) (a
“concise but clear” explanation requires only enough reasoning to enable
“meaningful appellate review”). It did so in this case.
To start, Shayler is incorrect to assert that the district court’s use of a
$300/hour blended billing rate “lacked any explanation or justification.” The
district court explained that this was a “straightforward” ADA case with boilerplate
pleadings, minimal legal complexity, and little in the way of difficult fact
discovery. The district court noted that the Department of Justice has compiled
precise standards for complying with the ADA, meaning that attorneys need only
check to see if the defendant’s premises meet these standards. The district court
further explained that, given these circumstances, it was unnecessary to staff the
case with “two partner-level attorneys” billing out at nearly $500/hour for
11 relatively simple tasks. Finally, it indicated that it agreed with three other district
court decisions holding that a $300/hour blended billing rate “is more
commensurate with the complexity level of these ADA cases.” The decisions cited
generally raise points similar to those raised by the district court, namely that serial
ADA litigation does not involve particularly complex work justifying partner-level
billing rates. See Langer v. Kha Dinh Nguyen, No. 8:19-cv-00294-JLS-KES, 2019
WL 7900270, at *6 (C.D. Cal. Nov. 27, 2019) (justifying $300/hour rate by
explaining that “five attorneys” were not needed to perform “tasks which seem
more suited for paralegals,” and citing the “form nature of the Complaint and the
case more generally”); Machowski v. Jacmar Partners III, No. SACV 21-00135-
CJC (JDEx), 2021 WL 2980223, at *1-2 (C.D. Cal. May 27, 2021) (containing
similar analysis); Jones v. Islam, No. 2:20-cv-11038-JLS-JPR, 2021 WL 3472860,
at *8 (C.D. Cal. July 7, 2021) (incorporating by reference similar analysis in
Machowski v. Suite 123 LLC, No. 8:20-cv-02014-JLS-ADS, 2021 WL 6496266
(C.D. Cal. June 10, 2021)).
The district court’s discussion of the unreasonable amount of hours
expended by Shayler’s attorneys, and why a 65% downward multiplier was
appropriate as a result, was even more detailed. The court identified specific line
items in the billing record and explained why they reflected unnecessary uses of
time by Shayler’s attorneys. For example, the court was not persuaded that it took
12 nine hours to prepare and file a boilerplate complaint, or that it took seventeen
hours to draft an unopposed summary judgment motion. The court also denoted
how Shayler’s attorneys had wasted time on an ex parte subpoena request that was
both untimely and substantively meritless. Finally, the district court explained that
“nearly two-thirds of the recorded fee hours” (in other words, nearly 67% of the
hours) were for work conducted after PCH admitted fault and “agreed to resolve
the identified issues while minimizing expenses.” Shayler contends that this
admission was just “for show” because PCH “did not . . . reach out to negotiate a
consent decree” or otherwise reach a settlement agreement. However, the district
court’s finding was not that PCH had agreed to a precise settlement, but only that it
had agreed not to contest liability and that it had agreed in principle to resolve the
issues identified by Shayler’s complaint. That finding is supported by the record.
These considered explanations make this case very unlike Camacho v.
Bridgeport Financial, Inc., 523 F.3d 973 (9th Cir. 1980), which Shayler relies on
heavily. Camacho held that the district court abused its discretion by using a
$200/hour blended billing rate because, “when the district court held that it would
be unreasonable on the facts of this case to award the full hourly rates requested by
[the plaintiff’s] attorneys, the court did not identify which facts led to this
conclusion.” Id. at 980. Moreover, the court failed to “indicate why an hourly rate
of $200 was in line with those prevailing in the community for similar services by
13 lawyers of reasonably comparable skill, experience and reputation.” Id. (citation
and internal quotations omitted). In stark contrast, the district court here gave
specific reasons for its decision to use a $300/hour blended rate, and cited other fee
awards in the same court that used this same rate in other repeat-player ADA cases.
Shayler also suggests it was improper for the district court to rely on other
court decisions employing a $300/hour rate in ADA cases, citing Moreno v. City of
Sacramento, 534 F.3d 1106 (9th Cir. 2008).3 That is an inapt comparison. In
Moreno, we admonished a district court for effectively “adopting a court-wide
policy . . . of ‘holding the line’ on fees” in civil rights cases at a fixed rate of
$250/hour. Moreno, 534 F.3d at 1115. Moreno explained that while “[d]istrict
judges can certainly consider the fees awarded by other judges in the same locality
in similar cases,” a judge cannot rely on past practice to refuse to use a higher
hourly rate for a lodestar calculation in light of changed “economic conditions in
the district.” Id. (“If the lodestar leads to an hourly rate that is higher than past
practice, the court must award that rate without regard to any contrary practice.”).
But the cases cited by the district court in support of its $300/hour rate—all from
the Central District of California—were relatively recent (two 2021 decisions, and
3 Shayler also makes the questionable argument that the district court erred in relying on these decisions because they were not subject to judicial notice and it is impermissible for the district court to rely on its own independent research. This argument is waived because it was not presented in Shayler’s opening brief. See, e.g., Brown, 840 F.3d at 1148.
14 one was from 2019), whereas the rate used by the district court in Moreno
“apparently hadn’t changed for 10 years.” Id. More fundamentally, the district
court was not simply “holding the line” on fee awards based solely on a de facto
court-wide policy; its choice of a $300/hour blended billing rate was largely based
on its finding that this was a run-of-the-mill repeat-player ADA case lacking in
legal, factual, or procedural complexity. And Moreno itself indicates that it was
not wrong for the district court to consider “the fees awarded by other judges in the
same locality in similar cases” as additional support for its decision. Id.
Finally, the district court’s concerns about the lack of complexity with
respect to the legal, factual, and procedural issues in this case, as well as its
reliance on the use of $300/hour rates in similar cases, track the factors that a court
is supposed to consider in calculating a fee award. See, e.g., Carter v. Caleb Brett
LLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v. Thomason, 850 F.2d
537, 539 n.1 (9th Cir.1988)) (listing twelve factors, including “the time and labor
required,” “the novelty and difficulty of the questions involved,” “the skill
requisite to perform the legal service properly,” and “awards in similar cases”).
Shayler’s opening brief does not dispute the district court’s finding that he is a
high-frequency ADA litigant, nor does it provide any explanation as to why his
case involved more complex issues than the cases relied upon by the district court.
15 In sum, while Shayler may be dissatisfied with the district court’s
explanations, they are sufficient to undergird its fee award under Ninth Circuit
precedent. At bottom, this was a simple, relatively uncontested case. Given the
repetitive nature of high-frequency ADA litigation, there was nothing irrational
about the district court’s conclusions that, in effect, much of the work here could
have been performed by junior associates or even paralegals, or that much of the
motion practice in the case was superfluous. Consequently, the district court did
not abuse its broad discretion, particularly in light of the Central District of
California’s considerable experience with these kinds of cases. See Hinkson, 585
F.3d at 1261 (district court abuses its discretion only when its conclusions are
illogical, implausible, or unsupported by the facts); Gates, 987 F.2d at 1398 (abuse
of discretion standard is highly deferential in the context of fee awards).
CONCLUSION
For the foregoing reasons, the district court’s judgment is AFFIRMED.