8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 SCOTT JOHNSON, Case No. 17-CV-04574-LHK
13 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 14 v. MOTION FOR ATTORNEY’S FEES AND COSTS 15 CALA STEVENS CREEK/MONROE, LLC, et al., Re: Dkt. No. 105 16 Defendants. 17
18 Plaintiff Scott Johnson (“Plaintiff”) brought this action against Defendants Cala Stevens 19 Creek/Monroe, LLC, Cala Stevens Creek/Monroe, LP, and Cala Holdings, LLC (collectively 20 “Defendnats”) and alleged violations of the Americans with Disabilities Act of 1990 (“ADA”) and 21 California Unruh Civil Rights Act (“Unruh Act”). On August 16, 2019, the Court granted 22 Plaintiff’s motion for summary judgment with regard to Plaintiff’s Unruh Act claim, but the Court 23 dismissed Plaintiff’s ADA claim. See ECF No. 95 at 12. Before the Court is Plaintiff’s motion 24 for attorneys’ fees and litigation costs. ECF No. 105. Having considered the submissions of the 25 parties, the relevant law, and the records in these cases, the Court GRANTS in part and DENIES 26 in part Plaintiff’s motion for attorney’s fees and costs. 27 1 I. BACKGROUND 1 Plaintiff Scott Johnson has quadriplegia, which means he cannot walk and uses a 2 wheelchair to move through the world. As a consequence, he drives a specially equipped van for 3 which he has been issued a Disabled Person Parking Placard by the California Department of 4 Motor Vehicles. ECF No. 89-4 (“Johnson Decl.”) ¶ 3. According to Plaintiff, he visited Sunny 5 Valley Spa on at least five occasions: on June 19 2015; October 15, 2015; April 21, 2016; June 29, 6 2016; and July 12, 2016. Id. ¶ 4. During these visits, Plaintiff observed that although the property 7 had a parking space marked for use by persons with disabilities, it was not accessible to him. Id. ¶ 8 6. Specifically, Plaintiff alleged: (1) the parking stall and the access aisle were not level because a 9 ramp from the curb extended far into the access aisle, (2) the space lacked “[t]he mandated pole or 10 wall mounted signage with the wheelchair logo,” (3) the space lacked “[t]he required ‘Minimum 11 Fine $250’ sign,” and (4) the lot lacked “[t]he required tow-away signage.” ECF No. 89-1 (“Pl. 12 Mot. for Summ. Judgment”) at 4-5. These problems, says Plaintiff, rendered the parking at the 13 Spa out of compliance with the applicable standards under the Americans with Disabilities Act of 14 1990, 42 U.S.C. §§ 12101 et seq. Id. at 10. Plaintiff claims he experienced “difficulty, 15 discomfort, and frustration” from having to park in a regular space and has been deterred from 16 visiting the Spa with greater frequency. Johnson Decl. ¶¶ 10, 13. 17 On August 10, 2017, Plaintiff brought this action in federal court against Cala Stevens 18 Creek/Monroe, LLC, the then-owner of the commercial property at 321 S. Monroe Street, San 19 Jose, California in which the Spa was located. ECF No. 1. Plaintiff later amended his 20 complaint to name the two current owners—Cala Stevens Creek/Monroe, LP and Cala Holdings, 21 LLC—as defendants. ECF No. 31 (“SAC”) ¶¶ 6-7. On December 5, 2017, Plaintiff filed the 22 Second Amended Complaint (“SAC”), in which Plaintiff alleged violations of the ADA and 23 sought an injunction compelling the Spa to bring its parking into compliance as well as monetary 24 damages pursuant to California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. SAC at 9- 25 10. 26 On May 7, 2019, Defendants filed a motion for summary judgment, ECF No. 79, and on 27 2 1 June 27, 2019, Plaintiff filed his own motion for summary judgment. ECF No. 89. On August 16, 2 2019, the Court dismissed Plaintiff’s ADA claim for mootness and “lack of jurisdiction” but 3 granted Plaintiff’s motion with respect to Plaintiff’s Unruh Act claim. ECF No. 95 at 1, 12. 4 Accordingly, on September 5, 2019, the Court entered judgment in favor of Plaintiff, ECF No. 99, 5 and on the same day the Court ordered the parties to conduct a settlement conference on the issue 6 of attorney’s fees. ECF No. 98. In that order, the Court also ordered “Plaintiff [to] refrain from 7 filing a motion for attorney’s fees until 30 days after the date of the settlement conference.” Id. at 8 1. 9 On November 21, 2019, the parties held a settlement conference but failed to reach a 10 settlement agreement with respect to attorney’s fees, ECF No. 104. As a result, on January 22, 11 2020—more than 30 days after the November 21, 2019 settlement conference—Plaintiff filed the 12 instant motion for attorney’s fees and costs. ECF No. 105 (“Mot.”). On March 2, 2020, following 13 the Court’s order permitting Plaintiff to file a motion to amend the exhibits, ECF No. 107, 14 Defendants filed an amended opposition—again, with the Court’s permission. ECF No. 111 15 (“Opp.”). On March 16, 2020, Plaintiff filed a reply. ECF No. 112 (“Reply”). 16 II. LEGAL STANDARD 17 Pursuant to both the ADA and California’s Unruh Act, a prevailing plaintiff may pursue 18 attorney’s fees. Specifically, the ADA provides that a district court, “in its discretion, may allow 19 the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs.” 42 20 U.S.C. § 12205. Similarly, under the Unruh Act, a prevailing party can recover “any attorney’s 21 fees that may be determined by the court.” Cal. Civ. Code § 52(a). A prevailing party is one who 22 “achieve[s] a material alteration of the legal relationship of the parties” that is “judicially 23 sanctioned.” Jankey v. Poop Deck, 537 F.3d 1122, 1129-30 (9th Cir. 2008) (internal quotation 24 marks omitted). 25 The calculation of a reasonable fee award is a two-step process. Fischer v. SJB-P.D., Inc., 26 214 F.3d 1115, 1119 (9th Cir. 2000). First, a court begins by calculating the “lodestar figure,” or 27 3 1 presumptive award, by multiplying the hours reasonably spent on the litigation by the attorney's 2 reasonable hourly rate. See Hensley, 461 U.S. at 433. Second, the court may enhance or reduce 3 the lodestar figure based on the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 4 67, 70 (9th Cir. 1975), that were not subsumed in the initial lodestar determination. Fischer, 214 5 F.3d at 1119. “A strong presumption exists that the lodestar figure represents a reasonable fee, 6 and therefore, it should only be enhanced or reduced in rare and exceptional cases.” Id. n.4 7 (internal quotation marks omitted). 8 In addition to permitting recovery of attorney's fees, the ADA permits a district court, in its 9 discretion, to award “litigation expenses” and “costs” to a prevailing party. 42 U.S.C. § 12205. 10 “Litigation expenses” include reasonable out-of-pocket expenses that would normally be charged 11 to a fees-paying client, such as expert witness fees, certain travel expenses, and the preparation of 12 exhibits. See Lovell v. Chandler, 303 F.3d 1039, 1058-59 (9th Cir. 2002); see also Riker v. 13 Distillery, 2009 WL 4269466, at *5 (E.D. Cal. Nov. 25, 2009). However, “unlike the ADA, the [] 14 Unruh Act do[es] not provide for out-of-pocket litigation expenses.” Rodriguez v. Barrita, Inc., 15 53 F. Supp. 3d 1268, 1294 (N.D. Cal. 2014); see also Johnson v. Hey Now Props. LLC, 2019 WL 16 586753, at *4 (E.D. Cal. Feb. 13, 2019) (“Unlike the ADA, the Unruh Act contains no mention of 17 litigation expenses as allowable costs.”); Cal. Civ. Code § 52(a) (failing to mention out-of-pocket 18 litigation expenses). 19 III. DISCUSSION 20 Plaintiff’s counsel originally sought “attorney[’s] fees and costs in the amount of 21 $48,816.00 pursuant to 42 U.S.C. § 12205 [and] California Civil Code § 52(a).” Mot. at 1. Of 22 that $48,816.00 total, Plaintiff’s counsel seeks $41,829.00 in fees for 85.8 hours worked and 23 $6,897.00 in litigation costs and expenses. ECF No. 105-3 at 1. Additionally, Plaintiff’s counsel 24 seeks to add an additional 8.2 hours for the drafting the reply and participating in an oral argument 25 that did not take place, which amounts to an additional $4,100 in fees. In total, Plaintiff’s counsel 26 seeks $52,916 for attorney’s fees and litigation costs and expenses. 27 4 1 Defendants oppose Plaintiff’s motion and argue that Plaintiff’s counsel’s motion is 2 untimely, utilizes an excessive hourly rate, inappropriately bills hours “not reasonably and 3 necessarily expended,” and inappropriately bills expert costs. See Opp. at 1-11. The Court 4 addresses each of Defendants’ arguments in turn. 5 A. Timeliness of Motion for Attorneys’ Fees 6 Defendants argue that the Court should deny Plaintiff’s motion for attorney’s fees because 7 the motion is untimely. See Opp. at 2-3. Specifically, Defendants argue that Federal Rule of Civil 8 Procedure 54(d) and Civil Local Rule 54.5 required Plaintiff’s counsel to file the instant motion 9 “on or before January 6, 2019” and that “Plaintiff delayed more than two weeks beyond the time 10 for filing the motion pursuant to Rule 54 and Local Rule 54.5.” Id. at 2. The Court disagrees. 11 Federal Rule of Civil Procedure 54(d)(2)(B) requires that, “[u]nless a statute or a court 12 order provides otherwise,” a motion for attorney’s fees “be filed no later than 14 days after the 13 entry of judgment.” Similarly, Civil Local Rule 54.5(a) states that “[u]nless otherwise ordered by 14 the Court . . . motions for attorney’s fees . . . must be served and filed within 14 days of entry of 15 judgment.” 16 Here, Rule 54(d)(2)(B) and Local Rule 54.5(a) do not apply. The Court previously ordered 17 Plaintiff to “refrain from filing a motion for attorney’s fees until 30 days after the date of the 18 settlement conference.” ECF No. 98 at 1. That order superseded both Rule 54(d)(2)(B) and Local 19 Rule 54.5(a), which both permit the Court to alter any deadlines. Additionally, because the 20 Court’s order did not set a deadline and instead only ordered Plaintiff to “refrain from filing a 21 motion for attorney’s fees until 30 days after the date of the settlement conference,” Plaintiff’s 22 motion was not untimely. Id. Accordingly, the Court rejects Defendant’s argument that Plaintiff’s 23 motion for attorney’s fees must be denied as untimely. 24 B. Plaintiff’s Counsel’s Hourly Rate 25 The Court now turns to the substance of the motion for attorney’s fees and costs. The first 26 step in the determination of a lodestar figure is to determine the reasonable hourly rate to be 27 5 1 applied. Fischer, 214 F.3d at 1119. To determine the prevailing market rate in the relevant legal 2 community, courts primarily look to the rates of attorneys practicing in the forum district (here, 3 the Northern District of California). See Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 4 1992). The applicant bears the burden to produce sufficient evidence that the rates claimed for its 5 attorneys are in line with prevailing market rates. See Fischer, 214 F.3d at 1121 (citing Hensley, 6 461 U.S. at 433). “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing 7 fees in the community, and rate determinations in other cases, particularly those setting a rate for 8 the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United 9 Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Put 10 differently, the party seeking fees bears the burden to prove the reasonableness of hours expended 11 using detailed time records documenting completed tasks and time expended. Hensley, 461 U.S. 12 at 437; Roberts v. City of Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019) (“It is the responsibility 13 of the attorney seeking fees to submit evidence to support the requested hourly rate.”). 14 When a party seeking fees submits declarations, courts must consider those declarations 15 and cannot substitute that analysis by only considering previous fee awards. Id. (“The district 16 court diverged from the applicable standard in discarding the declarations entirely and considering 17 only the previous fee awards in determining the prevailing market rate.”) Indeed, the Ninth 18 Circuit has explained that solely “[e]xamining prior fee awards to [even the same attorneys] in the 19 district [is] not an acceptable substitute for considering declarations submitted by [that attorney], 20 and explaining why those declarations did or did not establish the prevailing hourly rate in the 21 district.” Id. at 1025. 22 At the same time, district courts must remember that “[a] reasonable fee is a fee that is 23 sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights 24 case.” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018) (quotation marks 25 omitted). The purpose of granting fees in cases like the instant case is both “to attract qualified 26 counsel to civil rights cases and [to] avoid[] a windfall to counsel. The way to do so is to 27 6 1 compensate counsel at the prevailing rate in the community for similar work; no more, no 2 less.” Id. (quotation marks, citations, and internal alterations omitted). 3 Here, “Plaintiff’s counsel seeks rates between $410 per hour and $650 per hour based on 4 the experience of the attorney’s that staffed this matter, as well as the prevailing rates of the 5 community in which this matter is venued.” Mot. at 8. Specifically, Plaintiff’s counsel seeks the 6 following rates: $650 per hour for attorneys Potter, Handy, and Grace; $500 per hour for attorneys 7 Carson, Melton, D. Price, and Seabock; and $410 per hour for attorneys Goodman, Gunderson, 8 McAllister, Montgomery, P. Price, and Smith. See ECF No. 105-2 ¶¶ 5-17 (“Potter Decl.”) 9 Plaintiff’s counsel submitted the declaration of John O’Connor to justify their claimed 10 hourly rates. ECF No. 105-4 (“O’Connor Decl.”). According to O’Connor, attorneys Potter, 11 Handy, Grace, and Melton have between twenty-one and twenty-six years of experience. Id. ¶ 30. 12 Attorneys Carson, D. Price, Gunderson, Montgomery, Seabock, and Smith—who are all 13 associates—have between four years of experience and nine years of experience. Id. Attorney P. 14 Price is also an associate, has practiced in New York since 2005, and became a member of the 15 California bar in 2018. Id. P. Price has approximately fourteen years of experience, according to 16 O’Connor. Id. 17 Based on the experience of the attorneys at issue in the instant case, O’Connor “opine[d]” 18 that “the most appropriate rate for partners’ [Potter, Handy, and Grace’s] ADA services range 19 from $450 to $750 per hour.” Id. ¶¶ 27, 33. “[F]or associates’ services,” the “most appropriate 20 range” is “from $300 to $550 per hour.” Id. ¶¶ 29, 30, 33. O’Connor declared that his opinion 21 was also based on “recent rates awarded in the Northern District, and disability rates in the Bay 22 Area in general,” which he has “kept abreast of . . . since at least 2000.” Id. ¶ 29. As a result, 23 Plaintiff’s counsel seeks rates of $650 per hour for attorneys Potter, Handy, and Grace; $500 per 24 hour for attorneys Carson, Melton, D. Price, and Seabock; and $410 per hour for attorneys 25 Goodman, Gunderson, McAllister, Montgomery, P. Price, and Smith. See Potter Decl. ¶¶ 5-17. 26 Defendants’ main response is that “Plaintiff’s counsel has repeatedly made demands for 27 7 1 the hourly rates sought in the present motion and has repeatedly been rebuffed by Northern 2 District Courts.” Opp. at 3. Specifically, Defendants point to a number of cases in this district 3 from 2017, 2018, and 2019, where courts granted the following reduced rates for the attorneys 4 involved in the instant matter: $425 per hour for attorneys Potter, Handy, and Grace; $300 per 5 hour for attorneys Carson, Melton, D. Price, and Seabock; and $250 for attorneys Montgomery, 6 McAllister, P. Price, Goodman, Smith, and Gunderson. Id. at 4 (collecting cases). Defendants 7 request that the Court similarly reduce the rates in the instant case. 8 The problem with Defendants’ argument, however, is that it contradicts Ninth Circuit 9 precedent. Just last year, the Ninth Circuit held that “[e]xamining prior fee awards to [even the 10 same attorneys is] not an acceptable substitute for considering declarations submitted by [those 11 attorneys], and explaining why those declarations did or did not establish the prevailing hourly 12 rate in the district.” Roberts, 938 F.3d at 1025. As a result, the Court cannot solely look at past 13 awarded rates—even though those rates may be for the same attorneys—to determine what rates to 14 award in the instant case. 15 Rather, the Court must also assess Plaintiff’s counsel’s declarations and evidence. Here, 16 Plaintiff’s counsel asserts, based on the O’Connor Declaration, that “the most appropriate rate for 17 partners’ [Potter, Handy, and Grace’s] ADA services range from $450 to $750 per hour” and that 18 “for associates’ services,” the “most appropriate range” is “from $300 to $550 per hour.” 19 O’Connor Decl. ¶¶ 27, 33. However, this alone does not justify Plaintiff’s counsel’s claimed rates 20 of $650 per hour for attorneys Potter, Handy, and Grace; $500 per hour for attorneys Carson, 21 Melton, D. Price, and Seabock; and $410 per hour for attorneys Goodman, Gunderson, McAllister, 22 Montgomery, P. Price, and Smith. Potter Decl. ¶¶ 5-17. These rates are all on the higher end of 23 O’Connor’s claimed reasonable rates, and Plaintiff’s counsel does not adequately justify these 24 specific rates. 25 For example, in ADA cases, courts typically permit analogous rates for attorneys with far 26 more experience than Plaintiff’s counsel. See, e.g., Rodriguez, 53 F. Supp. 3d at 1268 (awarding 27 8 1 fees at $645 per hour for an attorney who was a “member of the California bar for over forty-five 2 years” and because “defendants d[id] not contest that $645/hour [was] a reasonable rate”); Martin 3 v. Diva Hosp. Grp., Inc., 2018 WL 6710705, at *2 (N.D. Cal. Dec. 7, 2018) (awarding fees of 4 $700 per hour for attorneys with almost thirty years of experience and awarding fees of $795 per 5 hour for an attorney with almost fifty years of experience—rates that the defendants did not 6 contest as unreasonable). Even then, however, courts have noted “that a rate over $700/hour is the 7 exception, and not the norm, for disability cases.” Johnson v. Rocklin of Cal. LLC, 2019 WL 8 3854308, at *10 (N.D. Cal. Aug. 16, 2019) (citing Chapman v. NJ Properties, Inc., 2019 WL 9 3718585, at *4 (N.D. Cal. Aug. 7, 2019). Rather, “[f]or attorneys with approximately 20 or more 10 years of experience, courts have generally approved rates ranging from $350 to $495 in disability 11 cases.” Id. (collecting cases). 12 The Court acknowledges that Plaintiff’s counsel has obtained a fees award consistent with 13 what counsel requests in the instant case in Love v. Rivendell II, Ltd., et al., Case No. 18-cv- 14 03907-JST (EDL), ECF No. 25 (N.D. Cal. Mar. 11, 2019) (report and recommendation granting 15 hourly rate of $650 for attorneys Potter, Handy, and Grace); see id., ECF No. 30 (adopting report 16 and recommendation). However, as multiple courts in this district noted, “that lone order granting 17 an unopposed motion does not accurately reflect the prevailing rate in the community for work 18 similar to this action,” as “that order cited cases that concerned work substantially different from 19 the work performed in this action.” Johnson v. AutoZone, Inc., 2019 WL 2288111, at *6 n.4 (N.D. 20 Cal. May 29, 2019); Rocklin of Cal. LLC, 2019 WL 3854308, at *9 (drawing same distinction). 21 Specifically, the cases that Rivendell relied upon involved “a complex class action matter 22 involving 54 hotels spread among multiple states” and set “‘new precedent’ that caused the 23 California State Bar to ‘change a policy which impacts potentially hundreds of individuals each 24 year across California.’” Rocklin of Cal. LLC, 2019 WL 3854308, at *9 (distinguishing 25 Rivendell). Nothing of that sort is at issue in the instant case. 26 Rather, as Plaintiff’s counsel concedes, this case was relatively straightforward and 27 9 1 “presented no significant legal issues of first impression.” Mot. at 14. When a matter “is a 2 relatively simple one, involving straight-forward application of the law, and which does not 3 present novel or difficult issues requiring a high level of skill or specialization,” courts have 4 generally found that higher rates are unwarranted. See Johnson v. Oakwood Ctr. LLC, 2019 WL 5 7209040, at *13 (N.D. Cal. Dec. 27, 2019). 6 The sheer number of ADA cases that Plaintiff’s counsel is litigating simultaneously 7 underscores the straightforward nature of Plaintiff’s’ counsel’s cases. Attorney D. Price has stated 8 that as of November 7, 2019, his law firm, consisting of 20 lawyers, was simultaneously litigating 9 “over a thousand” ADA cases in the Northern District of California and approximately 1,500 10 ADA cases in the Central District of California. Johnson v. Maple Tree Investors et al., No. 17- 11 cv-06762-LHK, ECF No. 62 at 17, 34-36 (N.D. Cal. Dec. 4, 2019). His law firm had previously 12 litigated approximately 2,500 ADA cases in the Eastern District of California. Id. 13 Furthermore, as noted above, Plaintiff’s own expert, John O’Connor, explains that the 14 floor for reasonable ADA rates in this district is $450 per hour for partners and $300 per hour for 15 associates. O’Connor Decl. ¶¶ 27, 33. Recent decisions out of this district confirm that rates 16 similar to these are reasonable. Rocklin, 2019 WL 3854308, at *12 (granting rates of $475 per 17 hour for attorneys Potter and Handy and $350 per hour for attorneys Price and Seabock); Shaw v. 18 Kelley, 2019 WL 5102610, at *5 (N.D. Cal. Oct. 11, 2019) (awarding $475 per hour for attorneys 19 Potter and Grace; $350 per hour for attorneys Melton, P. Price, Carson, and Seabock; and $300 20 per hour for attorneys Gunderson and Montgomery); Oakwood Ctr. LLC, 2019 WL 7209040, at 21 *13 (same); Johnson v. Johnson, 2020 WL 901517, at *6 (N.D. Cal. Feb. 25, 2020) (awarding 22 $475 per hour to attorneys Potter and Handy and $450 to attorney Grace). 23 Finally, these rates are reasonable for this district because, as the Ninth Circuit has 24 explained, “A reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the 25 representation of a meritorious civil rights case.” Vogel, 893 F.3d at 1158 (quotation marks 26 omitted). As Defendants point out, Plaintiff’s counsel has filed scores of cases in this district, and 27 10 1 there is simply no evidence that rates of approximately $475 per hour for partners and 2 approximately $300 to $350 per hour for associates are insufficient to induce capable attorneys to 3 undertake ADA litigation in this district. See id.; see also Johnson v. Maple Tree Investors et al., 4 No. 17-cv-06762-LHK, ECF No. 62 at 17, 34-36 (N.D. Cal. Dec. 4, 2019) (transcript of 5 November 7, 2019 hearing where attorney D. Price represented that his law firm has 6 simultaneously “over a thousand” ADA cases in this district and approximately 1,500 ADA cases 7 in the Central District of California and had litigated approximately 2,500 ADA cases in the 8 Eastern District of California). Indeed, the Ninth Circuit has noted “district court[s] must strike a 9 balance between granting sufficient fees to attract qualified counsel to civil rights cases and 10 avoiding a windfall to counsel.” Vogel, 893 F.3d at 1158 (emphasis added and quotation marks, 11 citations, and internal alterations omitted). The Court finds that awarding the fees requested by 12 Plaintiff’s counsel would be little more than a prohibited windfall. See id. 13 Accordingly, in light of Plaintiff’s declarations and evidence, case law from this district 14 concerning reasonable attorney’s fees, and binding Ninth Circuit precedent, the Court determines 15 that the following hourly rates are reasonable for the instant case: $475 per hour for attorneys 16 Potter, Handy, and Grace; $350 per hour for attorneys Carson, Melton, D. Price, and Seabock; and 17 $300 per hour for attorneys Goodman, Gunderson, McAllister, Montgomery, P. Price, and Smith. 18 B. Plaintiff’s Number of Hours 19 Having determined the reasonable hourly rate to be applied, the Court proceeds to 20 determine the number of hours reasonably expended on the litigation. Fischer, 214 F.3d at 1119. 21 The Court acknowledges that it “may not attempt to impose its own judgment regarding the best 22 way to operate a law firm, nor to determine if different staffing decisions might have led to 23 different fee requests.” Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). At 24 the same time, however, the Ninth Circuit has recently explained that “district courts have a duty 25 to ensure that claims for attorneys’ fees are reasonable, and a district court does not discharge that 26 duty simply by taking at face value the word of the prevailing party’s lawyer for the numbers of 27 11 1 hours expended on the case. Rather, a district court must ensure that the winning attorneys have 2 exercised billing judgment.” Vogel, 893 F.3d at 1160 (emphasis in original and quotation marks 3 and citations omitted). 4 At the outset, the Court notes that Plaintiff’s counsel’s billing records indicate that thirteen 5 attorneys expended 85.8 hours litigating the instant case before filing the instant motion’s reply. 6 ECF No. 107-3 at 1 (“Billing Summary”); Reply at 15 (“In Plaintiff’s moving papers, the time 7 associated handling the reply was not included as it had not yet been incurred and the nature of the 8 matter made it difficult to estimate.”). Moreover, Plaintiff’s counsel concedes that the instant case 9 was admittedly a straightforward case that “presented no significant legal issues of first 10 impression.” Mot. at 14. 11 The Court further notes that Attorney D. Price has stated that as of November 7, 2019, his 12 law firm, Potter Handy, consisting of 20 lawyers, was simultaneously litigating “over a thousand” 13 ADA cases in the Northern District of California and approximately 1,500 ADA cases in the 14 Central District of California. Johnson v. Maple Tree Investors et al., No. 17-cv-06762-LHK, 15 ECF No. 62 at 17, 34-36 (N.D. Cal. Dec. 4, 2019). His law firm had previously litigated 16 approximately 2,500 ADA cases in the Eastern District of California. Id. With over a thousand 17 ADA cases in the United States District Court for the Northern District of California alone and 18 experience with approximately 5,000 ADA cases in the United States District Courts for the 19 Eastern, Northern, and Central Districts of California, the Court would expect significant 20 efficiencies as well as templates that Plaintiffs’ counsel could use in every case. 21 However, any gained efficiencies from Plaintiff’s counsel’s extensive litigation experience 22 are not apparent from Plaintiff’s counsel’s billing entries. For example, attorney Handy, who is a 23 named partner of the law firm of Potter Handy and has twenty-one years of experience according 24 to O’Connor, repeatedly billed six minutes to review short boilerplate docket entries and notices 25 often even on the same day. For example, on August 14, 2017 and August 16, 2017, attorney 26 Handy billed 18 minutes to review a short docket entry setting a case management conference, a 27 12 1 short docket entry noting the impending reassignment of the case to a U.S. District Judge, and a 2 boilerplate short order reassigning the case to a U.S. District Judge. Billing Summary at 2. These 3 short, boilerplate notices are common to all ADA cases. See ECF Nos. 7, 9. 4 Similarly, on August 10, 2017, attorney Handy billed six minutes to review a single docket 5 entry that assigned the case to Magistrate Judge Nathanael M. Cousins then billed twelve minutes 6 to review the summons, which Plaintiff had drafted, and a boilerplate ADA case scheduling order 7 that is issued in all ADA cases. ECF Nos. 3, 4, 6; Billing Summary at 2 (charging 0.1 hours to 8 attorney Handy to “review[] text notice re case assignment” and 0.2 hours to “[r]eview[] Court 9 Issued Summons[] and Scheduling Order for Cases Asserting Denial of Right of Access under 10 ADA”). Given that these are short, boilerplate documents, one of which Plaintiff’s counsel 11 drafted, and Plaintiff’s counsel’s extensive experience litigating ADA cases in this district and 12 elsewhere, such tasks should not take this amount of time. 13 Furthermore, on October 18, 2017, Handy billed six minutes to review a two-line text 14 notice of an electronic filing error and then another six minutes to review a three-sentence order 15 granting a motion for administrative relief requesting extension of time to complete service. 16 Billing Summary at 3; ECF No. 15. This order was merely the proposed order filed by Plaintiff’s 17 counsel with the addition of the Court’s signature. ECF Nos. 13, 15. 18 Additionally, on June 13, 2018, attorney D. Price, who according to O’Connor has eight 19 years of experience, billed 6 minutes to review a three-sentence order granting the parties’ 20 stipulation for plaintiff to file a second amended complaint and then another six minutes to review 21 a boilerplate, three-line clerk’s notice scheduling an initial case management conference that is 22 issued in all cases. Billing Summary at 5; ECF Nos. 37, 38, 39. 23 Unfortunately, these billing practices were not confined to attorneys Handy or D. Price. 24 The Court found at least 93 entries accounting for 9.6 hours where Plaintiff’s counsel engaged in 25 similar billing practices. Specifically, other attorneys also repeatedly billed six minutes to review 26 short boilerplate docket entries and orders. See, e.g., id. at 5 (charging 0.1 hours to “review[] 27 13 1 order granting stipulation to file SAC”; id. (charging 0.1 hours to “review[] clerk’s notice re initial 2 case management conference”); id. at 7 (charging 0.1 hours to “review[] order granting 3 Defendants’ Motion to Appear by Telephone for the further CMC”); id. (charging 0.1 hours to 4 “review[] clerk’s notice setting ADR phone conference”). 5 Moreover, Plaintiff’s counsel repeatedly billed six minutes to give simple instructions to 6 assistants to file documents or send emails. On pages five and six of the Billing Summary alone, 7 attorneys charged six minutes in 19 separate entries that “instruct[] [an] assistant” to either send 8 emails or file a document. Id. at 5-6. Such billing entries are present throughout Plaintiff’s 9 counsel’s Billing Summary. See id. at 7 (charging 0.1 hours on multiple entries to “instruct[] 10 assistant” to send emails); id. at 12 (charging 0.5 hours across multiple entries to “instruct[] 11 assistant to email court clerk re scheduling settlement conference,” “instruct[] assistant to 12 coordinate with court clerk and defense counsel’s office,” “instruct[] assistant to follow up with 13 defense counsel’s office re scheduling settlement conference,” and “direct[] assistant to circulate 14 joint status report”). 15 Though a six minute timekeeping practice is “generally reasonable[,] . . . a reduction is 16 warranted.” Kalani v. Starbucks Corp., 2016 WL 379623, at *8 (N.D. Cal. Feb. 1, 2016); see also 17 Jacobson v. Persolve, LLC, 2016 WL 7230873, at *10 (N.D. Cal. Dec. 14, 2016) (“[B]illing 0.1 18 hours for certain practices sometimes requires a reduction.”). This is especially relevant here 19 because Plaintiff’s counsel routinely billed six minutes “for the receipt and review of multiple 20 single sentence orders and docket entries.” Persolve, 2016 WL 7230873, at *10. Indeed, courts in 21 this district have admonished Plaintiff’s counsel to not excessively bill “for tasks that include 22 telling an assistant to email a copy to the Center for Disability Access, reviewing the summons 23 and the initial ADA scheduling order, reviewing the consent notice, and reviewing other 24 administrative docket entries.” Gonzalez v. Machado, 2019 WL 3017647, at *6 (N.D. Cal. July 25 10, 2019) (order relating specifically to attorneys Potter and Handy). This is so because Plaintiff’s 26 counsel are “ADA lawyer[s] who presumably [are] familiar with routine notices received at the 27 14 1 outset of a case, as well as with the General Order No. 56 schedule for ADA cases.” Kalani, 2016 2 WL 379623, at *8. In such situations, courts typically “reduce[] the hours by 50%.” Gonzalez, 3 2019 WL 3017647, at *6 (citing Kalani, 2016 WL 379623, at *8, and Persolve, 2016 WL 4 7230873, at *10). 5 Across 12 pages of the Billing Summary, the Court counted 93 entries accounting for 9.6 6 hours where Plaintiff’s counsel either repeatedly charged for entries from “direct[ing] assistant to 7 circulate joint status report” to “review[ing] Clerk’s Notice of impending reassignment to a U.S. 8 District Court Judge.” The Court finds that such billing practices are inappropriate, and as a 9 result, reduces the claimed hours by 50%. Applying the 50% reduction to the instant case yields a 10 reduction of 4.8 hours. 11 Moreover, there are other examples of lack of efficiency. For example, on November 19, 12 2018, attorney P. Price, whom O’Connor represents has over 14 years of experience, billed 18 13 minutes to draft a request for telephonic appearance at a further case management conference. 14 Nearly, a year later, on September 9, 2019, attorney P. Price billed another 18 minutes to draft a 15 request for telephonic appearance at a further case management conference. On October 10, 2017, 16 attorney Carson, whom O’Connor represents has eight years of experience, billed 18 minutes to 17 draft a notice of appearance and to instruct his assistant to file it. Billing Summary at 2. In 18 litigating approximately 5,000 ADA cases in federal courts in California, the Court would expect 19 the law firm of Potter Handy to have templates for requests for telephonic appearances and notices 20 of appearances that could be generated more efficiently. It is also not clear why a lawyer with 21 over 14 years of experience would take the same amount of time to draft a boilerplate request for 22 telephonic appearance in the same case two years in a row. 23 In addition, the Court finds that two February 26, 2019 billing entries from attorney 24 Seabock are inefficient and perhaps even redundant. Billing Summary at 7. In these billing 25 entries, attorney Seabock, who has six years of experience according to O’Connor, billed 12 26 minutes for reviewing a single email from an assistant confirming the details of a mediation 27 15 1 conference. Id. That same day Seabock again billed 12 minutes for reviewing a single email from 2 the same assistant and defense counsel regarding the location of the mediation conference. Id. 3 The Court finds that Seabock’s billing of 24 minutes to read two emails from an assistant as to the 4 location and details of a mediation conference is inefficient. This is especially so because the 5 Northern District of California’s General Order 56 sets forth the requirements and schedule for all 6 ADA cases filed in the district and requires mediations for cases that do not settle at the required 7 joint inspection. See General Order 56 ¶ 9. Thus, Plaintiff’s counsel must be intimately familiar 8 with the mediation conference requirements from Plaintiff’s counsel’s involvement in more than 9 1,000 ADA cases in this district. 10 Finally, the Court turns to the 8.2 hours billed for the reply. Attorney D. Price billed 8.2 11 hours in total for the reply. As stated above, D. Price billed one hour for oral argument at a 12 hearing that was vacated. D. Price also claimed that “[r]eviewing the opposition filed by 13 Defendant and reviewing the claims made took 2.9 hours,” and “[t]he reply filed herein took 4.3 14 hours.” ECF No. 112-1 ¶¶ 10-13. Plaintiff’s counsel concedes that the 4.3 hours was 15 “substantially longer than is typical.” Id. ¶ 11. In total, the Court finds that a reduction of 3.0 16 hours is warranted as explained below. 17 To start, Plaintiff’s counsel cannot bill for the 1 hour of oral argument that never took 18 place. Additionally, Plaintiff’s counsel notes that it created a “chart attached to this motion as 19 Exhibit 3”; this chart is a one-page document showing approximately 15 case names with arrows 20 pointing among them. The chart is confusing, added nothing to Plaintiff’s counsel’s argument, 21 and was redundant of arguments raised in the actual briefing. Plaintiff’s counsel does not explain 22 how many hours were spent on this chart, but the Court approximates that the time spent was 2 23 hours given that Plaintiff’s counsel concedes that the 4.3 hours spent was “substantially longer 24 than is typical.” ECF No. 112-1 ¶ 11; see Hensley, 461 U.S. at 434 (permitting court to exclude 25 “excessive, redundant, or otherwise unnecessary” hours from fee awards). Therefore, the Court 26 finds that the recoverable hours billed by attorney D. Price for the reply will be reduced by 3 hours 27 16 1 in total. As a result, Plaintiff’s counsel may charge 5.2 hours to attorney D. Price for the reply. 2 In summary, in addition to the 4.8-hour reduction applied across numerous attorneys for 3 reviewing short, boilerplate docket entries and documents and excessive time giving instructions 4 to assistants, the Court applies a 0.2-hour reduction to attorney Seabock’s hours. In total, the 5 Court reduces Plaintiff’s counsel’s claimed 85.8 billed hours by 5.0 hours to 80.8 hours. The 6 Court also reduces Plaintiff’s counsel’s claimed 8.2 billed hours for the reply by 3.0 hours to 5.2 7 hours. 8 Accordingly, the Court determines that the appropriate lodestar figure in this case is 9 $30,023.75, calculated as follows:
10 Attorney Hours Hours Total Hours Reasonable Fees Per 11 Claimed Reduced Rate Attorney 12 Potter 2.50 hours 0 hours 2.50 hours $475 per hour $1,187.50 13 Handy 9.00 hours 0.85 hours 8.15 hours $475 per hour $3,871.25 14 Grace 1.90 hours 0.10 hours 1.80 hours $475 per hour $855.00 15 Carson 4.40 hours 0.50 hours 3.90 hours $350 per hour $1,365.00 16 Melton 0.80 hours 0.15 hours 0.65 hours $350 per hour $227.50 17 D. Price 32.20 hours 3.65 hours 28.55 hours $350 per hour $9,992.50 18 Seabock 9.40 hours 1.60 hours 7.80 hours $350 per hour $2,730.00 19 Goodman 8.00 hours 0 hours 8.00 hours $300 per hour $2,400.00 20 Gunderson 11.20 hours 0.20 hours 11.00 hours $300 per hour $3,300.00 21 McAllister 4.60 hours 0.30 hours 4.30 hours $300 per hour $1,290.00 22 Montgomery 1.60 hours 0.05 hours 1.55 hours $300 per hour $465.00 23 P. Price 5.10 hours 0.50 hours 4.60 hours $300 per hour $1,380.00 24 Smith 3.30 hours 0.10 hours 3.20 hours $300 per hour $960.00 25 TOTAL 94.00 hours 8.00 hours 86.00 hours N/A $30,023.75 26 Therefore, the Court GRANTS in part and DENIES in part Plaintiff’s counsel’s motion for 27 17 1 attorney’s fees. The Court awards Plaintiff’s counsel reasonable attorney’s fees in the amount of 2 $30,023.75 as calculated above. 3 C. Plaintiff’s Counsel’s Inclusion of Litigation Expenses and Costs 4 Lastly, Plaintiff seeks $6,987.00, which includes “litigation expenses” comprising $400.00 5 for an investigation and $6,000.00 for expert fees, as well as costs comprising a service cost of 6 $187.00 and a filing fee of $400.00. Mot. at 18-19. The Court first addresses Plaintiff’s $6,400 7 request for litigation expenses before turning to Plaintiff’s $587.00 request for service costs and 8 filing fees. 9 First, with regard to Plaintiff’s request for litigation expenses, Plaintiff seeks $6,400.00 for 10 an investigation and expert fees pursuant to “Section 505 of the Americans with Disabilities Act.” 11 Mot. at 18. Specifically, Plaintiff seeks $6,000 in expert fees for the declaration of John 12 O’Connor. Id. at 18-19; ECF No. 105-4 (“O’Connor Decl.”). The O’Connor Declaration, 13 however, was never used to litigate any substantive issues in the instant case, but rather, was 14 created to analyze attorney’s fees in this district and to support Plaintiff’s claimed hourly rates in 15 Plaintiff’s motion for attorney’s fees. See, e.g., O’Connor Decl. ¶ 24 (“Based upon the foregoing, 16 I believe I am qualified to opine on the rates applicable in this case.”). The remaining $400 in 17 costs are simply described as “investigation . . . costs.” Mot. at 18. 18 The Court DENIES Plaintiff’s request for $6,400 in litigation expenses. Plaintiff’s motion 19 ignores the fact that the Court dismissed Plaintiff’s ADA claim and only granted judgment in 20 Plaintiff’s favor with regard to Plaintiff’s Unruh Act claim. See ECF No. 95 at 1 (“[T]he Court 21 dismisses Plaintiff’s ADA claim for mootness and lack of jurisdiction . . . .”). As such, Plaintiff’s 22 request for litigation expenses can only proceed under the Unruh Act. 23 As courts have noted, the “Unruh Act do[es] not provide for out-of-pocket litigation 24 expenses.” Rodriguez, 53 F. Supp. 3d at 1294; see also Hey Now Props., 2019 WL 586753, at *4 25 (denying litigation expenses where Plaintiff only prevailed on Unruh Act cause of action because 26 the “Unruh Act contains no mention of litigation expenses as allowable costs”). Indeed, Plaintiff’s 27 18 1 motion itself notes that only “[t]he federal statute, unlike the state statutes, explicitly provides for 2 . . . litigation expenses and costs.” Mot. at 19 (quotation marks omitted). Nonetheless, Plaintiff’s 3 motion offers no rationale for how or why the Court should award litigation expenses pursuant to 4 the Unruh Act, as Plaintiff’s motion solely argues for these expenses under the ADA. See Mot. at 5 18-19; Reply at 14-15. In other words, though a plaintiff is required to “satisfactorily explain” 6 why he is entitled to specific litigation expenses, Plaintiff has failed to do so in the instant case. 7 See Kalani, 2016 WL 379623, at *10. 8 Accordingly, because the Court dismissed Plaintiff’s ADA claim, the Court DENIES 9 Plaintiff’s request for $6,400.00 in litigation expenses. Additionally, in any event, Plaintiff would 10 not be entitled to $6,000 in expert costs even if Plaintiff prevailed on his ADA claim. “The 11 discretion to award reimbursement for expert witness fees is not unlimited. In order for the district 12 court to allow such expenses, the court must find that the expert testimony submitted was ‘crucial 13 or indispensable’ to the litigation at hand.” In re Media Vision Tech. Sec. Lit., 913 F. Supp. 1362, 14 1366 (N.D. Cal. 1996) (quoting United States v. City of Twin Falls, Idaho, 806 F.2d 862, 864 (9th 15 Cir. 1986)); Rodriquez v. Farmers Ins. Co. of Arizona, 649 Fed. App’x 620 (9th Cir. 2016) 16 (“District courts have discretion to reimburse expert witness fees if the expert’s services were 17 ‘crucial or indispensable’ to the action.”). Here, Plaintiff does not, and indeed cannot, argue that 18 expert costs related to calculating attorney’s fees are “crucial or indispensable” to this disability 19 access action. 20 Second, Plaintiff’s counsel seeks $587.00 for service costs and filing fees. Mot. at 18-19. 21 Defendants do not oppose Plaintiff’s counsel’s request. Opp. at 11. 22 28 U.S.C. § 1920 enumerates taxable costs and “lists such items as clerk fees, court 23 reporter fees, expenses for printing and witnesses, expenses for exemplification and copies, docket 24 fees, and compensation of court-appointed experts.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 25 560, 573 (2012). Plaintiff’s counsel’s “filing fees and costs of service are compensable under 26 Section 1920.” Hey Now Props., 2019 WL 5867533, at *4. Though Plaintiff’s counsel does not 27 19 1 argue this point, it is worth noting that Section 1920 does not permit Plaintiff’s counsel to recover 2 costs for investigation or expert fees. Hey Now Props., 2019 WL 586753, at *4 (“Plaintiff cannot 3 recover as costs any of his litigation expenses for investigation and expert fees because they fall 4 outside the purview of Section 1920.” (citing Phelps Dodge Corp., 896 F.2d at 407)). 5 Accordingly, the Court GRANTS Plaintiff’s counsel’s request for $587.00 in service costs and 6 filing fees. 7 IV. CONCLUSION 8 For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiff’s 9 counsel’s motion for attorney’s fees and costs. Specifically, Plaintiff’s counsel may recover 10 $30,023.75 in attorney’s fees. Plaintiff’s counsel may also recover $587.00 in service costs and 11 filing fees. Plaintiff’s motion for attorney’s fees and costs is otherwise DENIED. 12 IT IS SO ORDERED. 13 Dated: May 20, 2020 14 ______________________________________ LUCY H. KOH 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 20