Johnson v. Sweet Spark, Inc.

• Court: District Court, E.D. California
• Decided: March 20, 2020
• Docket: 2:17-cv-02474
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SCOTT N. JOHNSON, No. 2:17-cv-02474 WBS DB 13 Plaintiff, 14 v. ORDER RE: MOTION FOR ATTORNEY’S FEES 15 SWEET SPARK, INC., 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Scott Johnson moves for $35,359.20 in 20 attorney’s fees pursuant to the court’s authority under the 21 Americans with Disabilities Act, 42 U.S.C. § 12205, and 22 California Civil Code § 52(a) following the parties’ settlement. 23 (Docket No. 43.) 24 I. Facts & Procedural Background 25 Plaintiff is a quadriplegic who uses a wheelchair for 26 mobility and has a specially equipped van. (Decl. of Scott 27 Johnson (“Johnson Decl.”) ¶¶ 2-3 (Docket No. 24-5).) Plaintiff 28 claims that on at least five different occasions between March 1 2017 and September 2017, he encountered access barriers at Fix 2 Auto Sacramento (“Fix Auto”) that denied him full and equal 3 access to Fix Auto and caused him difficulty and frustration. 4 (Id. ¶¶ 6-12.) At all relevant times, defendant Sweet Spark, 5 Inc. (“Sweet Spark”) owned, and presently owns, Fix Auto. (Def’s 6 Resp. to Pl.’s Req. for Admis. 2-5 (Docket No. 24-12).) 7 Plaintiff filed this action on November 24, 2017 seeking an 8 injunction under the ADA and Unruh Act compelling Sweet Spark to 9 bring its facilities into full compliance with the ADA. He also 10 sought damages under the Unruh Act. (Compl. at 11 (Docket No. 11 1).) 12 After this court denied plaintiff’s motion for summary 13 judgment (Docket No. 28), the parties reached a settlement 14 agreement following their final pretrial conference. (Docket No. 15 39.) The settlement agreement disposed of all causes of action 16 described in the complaint and any causes of action that may have 17 been brought in the complaint, known or unknown.1 (Settlement 18 Agreement (Docket No. 51).) Presently before the court is 19 plaintiff’s opposed motion for attorney’s fees. (Docket No. 43.) 20 II. Discussion 21 A. Attorney’s Fees 22 Pursuant to 42 U.S.C. § 12205, a prevailing party is 23 entitled to “reasonable attorney’s fees, including litigation 24 expenses and costs.” 42 U.S.C. § 12205. Similarly, prevailing 25 parties can recover attorney’s fees in suits brought under 26 1 The parties’ confidential settlement agreement was 27 submitted to the court under seal.

28 1 California civil rights statutes, including the Unruh Civil 2 Rights Act. Cal. Civ. Code § 52(a). Defendant does not dispute 3 that plaintiff was the prevailing party here, but contends that 4 the attorney’s fees were miscalculated and a portion of the fee 5 award is unsupported by evidence. (Opp. to Mot. (“Opp.”) (Docket 6 No. 47).) 7 An award of reasonable attorney’s fees is determined by 8 the lodestar approach. See Hensley v. Eckerhart, 461 U.S. 424, 9 433 (1983). The lodestar is the “number of hours reasonably 10 expended on the litigation multiplied by a reasonable hourly 11 rate.” Id. The court will exclude from the calculation any 12 hours that were not reasonably expended because they were 13 “excessive, redundant or unnecessary.” Id. at 434. The court 14 may then adjust the lodestar figure “pursuant to a variety of 15 factors.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 (9th 16 Cir. 2013) (citation and internal punctuation omitted). There is 17 a strong presumption that the lodestar amount is reasonable. 18 Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 19 2000). In determining the size of an appropriate fee award, the 20 court need not “achieve auditing perfection.” Fox v. Vice, 563 21 U.S. 826, 838 (2011). The court may use estimates and “take into 22 account [its] overall sense of a suit” to determine a reasonable 23 attorney’s fee. Id. 24 1. Lodestar Computation 25 The burden is on the party requesting attorney’s fees 26 to produce evidence to support his request. Blum v. Stenson, 465 27 U.S. 886, 905 (1984). This includes submitting billing records 28 to establish that the number of hours requested is reasonable. 1 Gonzalez, 729 F.3d at 1202. The court may reduce the hours 2 “where documentation of the hours is inadequate; if the case was 3 overstaffed and hours are duplicated; [or] if the hours expended 4 are deemed excessive or otherwise unnecessary.” Chalmers v. City 5 of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). 6 Plaintiff submitted a billing statement itemizing the 7 time spent by twelve attorneys on this matter: Russell Handy, 8 Phyl Grace, Dennis Price, Amanda Seabock, Isabel Masanque, Chris 9 Seabock, Sara Gunderson, Elliot Montgomery, Khushpreet Mehton, 10 Robert Doyle, Bradley Smith, and Mark Potter. (Mot. Ex. 2 11 (“Billing Statement”) (Docket No. 43-3).) Defendant claims that 12 counsel billed for items that were clerical, unnecessary, or 13 unreasonable. (Opp. at 7-16.) The hours claimed by plaintiff’s 14 counsel, the defendant’s requested deduction to hours, and the 15 hours that would remain after the requested deduction are as 16 follows:

17 Attorney Name Hours Claimed Requested Hours Remaining by Plaintiff Deduction After Deduction 18 Mark Potter .3 0 .3 19 Russell Handy 4.4 1.8 2.6 Phyl Grace 2.6 1.7 .9 20 Dennis Price 18.3 15.4 2.9 Amanda Seabock 2.4 1.9 .5 21 Chris Seabock 1.6 0 1.6 22 Isabel Masanque 12.3 2.2 10.1 Elliot Montgomery 1.3 0 1.3 23 Sara Gunderson 2.3 1.4 .9 Khushpreet Mehton .4 .4 0 24 Robert Doyle .1 .1 0 Bradley Smith 31.0 6.7 24.3 25 Totals 77 hours 32.6 hours 55.7 lodestar 26 claimed requested hours reduction 27 i. Billings by Handy 28 1 Mr. Handy claims 4.4 total hours. (See generally 2 Billing Statement.) Defendant first objects to an hour spent by 3 Mr. Handy reviewing defendant’s answer and updating case notes. 4 (Opp. at 7.) Defendant claims an hour spent on this task is 5 “excessive” and there is “inadequate documentation regarding what 6 analysis was conducted, and what notes were updated.” (Id.) The 7 court finds it is reasonable to spend an hour reviewing an answer 8 and updating case notes, and will not reduce that portion of Mr. 9 Handy’s claimed hours. 10 Next, defendant objects to Mr. Handy’s review of 11 particular orders in light of their brevity, including: reviewing 12 the stay order and VDRP order, reviewing the order extending 13 VDRP, reviewing the notice of appointment of a VDRP neutral, 14 reviewing an order extending time to complete VDRP, reviewing the 15 notice of completion of VDRP, reviewing the text of the order for 16 the settlement conference, reviewing the order vacating the trial 17 date and deadline for dismissal, and reviewing the minutes of the 18 settlement conference. (Opp. at 7-8.) These reviews totaled 1 19 hour. (Id.; Billing Statement 3-5, 7-8.) While some of the 20 orders were as short as a sentence, exacting review of a court’s 21 orders is a reasonable activity. Therefore, the billings for 22 reviewing orders are not unreasonable or excessive. 23 Conversely, Handy billed .8 hours for conveying 24 instructions to his assistant. (Opp. at 7-8; Billing Statement 25 3-5, 8.) Defendant objects, claiming these instructions are a 26 clerical task that cannot be billed as attorney’s fees. (Opp. at 27 7-9.) The Ninth Circuit has recognized that work that is 28 “clerical in nature . . . should [be] subsumed in firm overhead 1 rather than billed.” Nadarajah v. Holder, 569 F.3d 906, 921 (9th 2 Cir. 2009). This can include organizational tasks like filings, 3 calendaring dealings, and certain email correspondence. See 4 Miller v. Schmitz, 1:12-cv-00317-LJO-SAB, 2017 WL 633892, at *6-7 5 (E.D. Cal. Feb. 15, 2017). While careful instructions are 6 important, instructions to “notify plaintiff of mediation date” 7 or “send reminder email to plaintiff” are clerical tasks that 8 cannot be billed at an attorney’s rate. (Billing Statement at 9 4.) Accordingly, the court will reduce Mr. Handy’s claimed hours 10 by .8, bringing his total hours to 3.6. 11 ii. Billings by Grace 12 Defendant first claims Ms. Grace billed for clerical 13 tasks when listing .5 hours for correspondence and instructions 14 between her and her assistant to “contact defense counsel” and 15 “confirm with defense counsel,” among other things. (Opp. at 9- 16 10.) For the reasons discussed above, the court agrees and will 17 reduce her claimed hours by .5. 18 Defendant also objects to .6 hours’ worth of emails 19 exchanged between Ms. Grace and defense counsel. (Id.) While 20 the descriptions on the mast majority of the entries are confined 21 to “email with defense counsel,” the court recognizes that these 22 emails could be substantive and the time spent will not be 23 excluded. See Miller, 2017 WL 633892, at *8. 24 Finally, defendant objects to Ms. Grace’s billings for 25 reviewing draft stipulations, deadline extensions, and additional 26 revisions of drafted stipulation, totaling .7 hours. (Opp. to 27 Mot. at 9.) The court does not find this excessive or 28 duplicative, and will not reduce the hours on those grounds. 1 Accordingly, the court will reduce Ms. Grace’s claimed 2.6 hours 2 by .5, leaving her with 2.1 hours. 3 iii. Billings by Price 4 Defendant next argues that Price’s instructions to his 5 assistant for the joint status report and his review of billing 6 for errors or duplications are unbillable, because they are 7 clerical or overhead. (Opp. at 10.) Time spent on tasks like 8 preparing billing statements falls within the scope of 9 administrative tasks previously mentioned. See Miller, 2017 WL 10 633892, at *9 (citing Valley Bank & Trust Co., 678 F. Supp. 714, 11 725 (N.D. Ill. 1988)). Accordingly, Mr. Price’s rate will be 12 reduced .4 hours. 13 Similarly, defendant argues plaintiff’s claimed 14 research on prevailing hourly rates in Sacramento are unbillable 15 because the information can easily be found, or is already known 16 to the attorneys given their expertise. (Opp. at 10.) 17 Ironically, plaintiff provides an abundance of research on 18 prevailing rates in the Central District of California, but 19 provides no guidance on the prevailing rates in the Eastern 20 District. (See Docket No. 43-5 & 6.) Accordingly, the court 21 will not allow that request. 22 Finally, Price billed 6.0 hours to draft the fees 23 motion and initially billed an additional 8.0 hours to prepare 24 the reply brief in support of the pending motion and to prepare 25 for and attend the oral argument. (Billing Statement at 9.) The 26 court finds taking 6 hours to draft the fees motion is 27 reasonable. In a declaration submitted with plaintiff’s reply, 28 Mr. Price claims reviewing the defendant’s opposition to the 1 current motion took 2.1 hours and drafting the reply took 3.1 2 hours. (Decl. of Dennis Price (“Price Decl.”) ¶¶ 3-4 (Docket No. 3 53-1).) In light of the submission of the motion on the papers, 4 Mr. Price withdrew his request for additional time associated 5 with a court appearance. (Id. ¶ 5.) The court finds the total 6 time associated with reviewing defendant’s opposition and 7 drafting the reply -- 5.2 hours -- is not unreasonable. The 8 court will subtract the remaining 2.8 hours from Mr. Price’s 9 initial 8 hour time estimate per the plaintiff’s withdrawal. 10 Accordingly, Mr. Price’s claimed 18.3 hours will be reduced by 11 5.2, bringing his total to 13.1. 12 iv. Billings by Masanque 13 Defendant objects to billing .8 hours for a public 14 record search, claiming it is a clerical task. (Opp. at 11; 15 Billing Statement at 2.) Indeed, this court has previously 16 addressed this precise task by plaintiff’s counsel in three of 17 its prior decisions, and reduced the hours claimed in each. See 18 Johnson v. Xinliang Bai, No. 2:16-1698 WBS GGH, 2017 WL 3334006, 19 at *2 (E.D. Cal. Aug. 4, 2017) (reducing 2.2 hour search by 1.1 20 hours); Johnson v. Wayside Prop., Inc., No. 2:13-1610 WBS AC, 21 2014 WL 6634324, at *4 (E.D. Cal. Nov. 21, 2014) (2.1 hours for 22 public records research reduced to 1.1 hours); Johnson v. Allied 23 Trailer Supply, No. 2:13-1544 WBS EFB, 2014 WL 1334006, at *2 24 (E.D. Cal. Apr. 3, 2014) (same). But here, with under an hour’s 25 worth of work claimed, the court finds it is reasonable. 26 Defendant then claims that .7 hours to draft the 27 complaint and .1 hours to review the court’s summons are 28 “excessive.” (Opp. at 11-12.) These are substantive tasks, and 1 the amount of time claimed does not appear to be unreasonable. 2 However, Ms. Masanque’s claimed .6 hours spent providing 3 instructions to her assistant, emailing the court clerk, and 4 emailing a word version of the statement of undisputed facts to 5 opposing counsel are clerical and will be discounted. (Opp. at 6 12; Billing Statement 2, 7.) Accordingly, Ms. Masanque’s claimed 7 12.3 hours will be reduced by .6, leaving her with 11.7 hours. 8 v. Billings by Amanda Seabock 9 Defendant argues spending 1.2 hours drafting a notice 10 of settlement, settlement agreement, and stipulation to extend 11 deadline for dismissal is an unbillable clerical task. (Opp. at 12 12; Billing Statement at 8-9.) While drafting a notice of 13 settlement is arguably a clerical task, see Xinliang Bai, 2017 WL 14 3334006, at *2, the court finds that .3 hours to draft the notice 15 of settlement, .6 hours to draft the settlement, and .3 hours to 16 draft the stipulation to extend deadline for dismissal is not 17 unreasonable and therefore it will not be discounted. 18 Similarly, the .6 hours spent reviewing correspondence 19 from defense counsel is also not unreasonable and will not be 20 reduced. (Opp. at 12-13.) However, for the reasons set forth 21 above, the court finds Ms. Seabock’s correspondence with her 22 assistant cannot be billed because it is clerical. (Opp. at 12.) 23 Accordingly, the court will reduce Ms. Seabock’s claimed 2.4 24 hours by .1 hours. 25 vi. Billings by Gunderson 26 Much as with the other attorneys, defendant objects to 27 the .5 hours Ms. Gunderson spent providing instructions to her 28 assistant, and for the reasons the court has already provided, 1 this time will be discounted. (Opp. at 13-14; Billing Statement 2 5-6.) The .4 hours spent corresponding with defense counsel, or 3 reviewing correspondence from the city clerk or court, is not 4 inherently clerical, and will not be discounted. (Id.) Finally, 5 the .4 hours spent reviewing the investigator’s report and the .1 6 hours spent drafting notices of deposition will not be reduced as 7 clerical or excessive in light of their substantive nature. 8 Accordingly, Ms. Gunderson’s 2.3 hours will be reduced by .5, 9 leaving her with 1.8 hours for the lodestar calculation. 10 vii. Billings by Mehton 11 Defendant argues the .2 hours Mr. Mehton spent drafting 12 a notice of appearance and .2 hours spent drafting a notice of 13 withdrawal are clerical tasks. (Opp. at 14; Billing Statement at 14 3.) Some tasks, like drafting notices, do not require an 15 attorney to perform. See Compass Bank v. Morris Cerullo World 16 Evangelism, No. 13:CV-0654-BAS (WVG), 2015 WL 3442030, at *8 17 (S.D. Cal. May 28, 2015) (finding “certain tasks were ministerial 18 and did not require an attorney to perform[,]” including drafting 19 a subpoena). These notices fall within that scope, and will be 20 excluded. 21 viii. Billings by Doyle 22 Mr. Doyle billed .1 hours to review the court’s order 23 to continue the scheduling conference. (Billing Statement at 2.) 24 This is the only task for which Mr. Doyle recorded time. The 25 court finds it unreasonable to seek attorney’s fees for one 26 discrete task. Accordingly, Mr. Doyle’s hours will be reduced to 27 zero. 28 ix. Billings by Smith 1 Defendant objects to the .2 hours Mr. Smith used to 2 draft the appearance of counsel, and for the reasons set forth 3 above, it will be discounted as clerical. (Opp. at 15.) 4 Defendant next objects to the 2 hours Mr. Smith used to prepare 5 for the mediation conference. (See id.) However, the court 6 finds two hours to prepare for a mediation conference is not 7 unreasonable. Next, Mr. Smith’s review of emails from defense 8 counsel are not necessarily clerical, and therefore the 1 hour 9 spent doing so will not be discounted. (See id. at 15-16.) 10 However, the .8 hours Mr. Smith spent conveying instructions to 11 his assistant or reviewing emails from a judicial assistant are 12 administrative and will be discounted. (See id.) 13 Additionally, the .3 hours Mr. Smith took to fill out 14 the subpoena form and the .2 hours he used to draft the notice of 15 submission of confidential settlement agreement is considered 16 clerical and will be discounted. See Compass Bank, 2015 WL 17 3442030, at *8 (finding “certain tasks were ministerial and did 18 not require an attorney to perform[,]” including drafting a 19 subpoena). 20 Finally, 2 hours to prepare for the settlement 21 conference is not ordinarily unreasonable. However, here the 22 court has already awarded Mr. Smith compensation for 2 hours to 23 prepare for the mediation conference. Considering the 24 similarities between a mediation conference and a settlement 25 conference, the court finds it duplicative and unreasonable to 26 compensate Mr. Smith for both 2 hours in preparation for the 27 mediation conference and another 2 hours in preparation for the 28 settlement conference. No explanation is provided for how the 1 tasks were any different. Accordingly, the court will discount 2 the 2 hours claimed by Mr. Smith for preparing for the settlement 3 conference. Mr. Smith’s claimed 31 hours will be reduced by 3.5, 4 for a total of 27.5. 5 x. Summary 6 All told, the attorney’s claimed hours, the defendant’s 7 requested reduction, the court’s actual reduction, and the hours 8 remaining for the lodestar calculation are listed below:

9 Attorney Hours Requested Hours Hours Name Claimed Reduction Reduced (if for 10 any) Lodestar 11 Mark Potter .3 0 0 .3 Russell 4.4 1.8 .8 3.6 12 Handy Phyl Grace 2.6 1.7 .5 2.1 13 Dennis Price 18.3 15.4 5.2 13.1 Amanda 2.4 1.9 .1 2.3 14 Seabock 15 Chris 1.6 0 0 1.6 Seabock 16 Isabel 12.3 2.2 .6 11.7 Masanque 17 Elliot 1.3 0 0 1.3 18 Montgomery Sara 2.3 1.4 .5 1.8 19 Gunderson Khushpreet .4 .4 .4 0 20 Mehton Robert Doyle .1 .1 .1 0 21 Bradley 31.0 6.7 3.5 27.5 22 Smith Totals 77 hours 32.6 hours 11.7 hours 65.3 23 claimed requested actually lodestar reduction reduced hours 24 2. Hourly Rates 25 After the hours are calculated, the court must look to 26 the prevailing rates for the “relevant community” to determine 27 how much to award. Camacho v. Bridgeport Financial, Inc., 523 28 1 F.3d 973, 979 (9th Cir. 2008). The relevant community is the 2 form in which the district sits. Id. In this case, the relevant 3 community is the Sacramento Division of the Eastern District of 4 California. The prevailing party has the burden of producing 5 sufficient evidence that its “requested rates are in line with 6 those prevailing in the community for similar services by lawyers 7 of reasonably comparable skill, experience and reputation.” 8 Blum, 465 U.S. at 895 n.11; accord Gonzalez, 729 F.3d at 1206. 9 Unless the requesting party provides evidence of the prevailing 10 rate in the relevant community, the court is permitted to 11 consider the rates awarded in prior fee awards in the district. 12 See Johnson v. Patel, No. 2:14-2078 WBS AC, 2016 WL 72711, at *3 13 (E.D. Cal. Feb. 23, 2016). 14 Overwhelmingly, the recent cases from this district 15 have concluded that hourly rates of $300 for Mr. Potter and Mr. 16 Handy, $250 for Ms. Grace, and $150 for Mr. Price and other 17 junior attorneys2 are reasonable. See, e.g., Johnson v. Hey Now 18 Properties, LLC, No. 2:16-CV-02931 WBS KJN, 2019 WL 586753, at *3 19 (E.D. Cal. Feb. 13, 2019) (finding hourly rate of $300 for Potter 20 and Handy, $250 for senior attorneys, and $150 for junior 21 attorneys were reasonable); Johnson v. Wen Zhi Deng, No. 2:15-CV- 22 02698 KJM EFB, 2019 WL 1098994, at *2 (E.D. Cal. Mar. 8, 2019) 23 (holding that “the rates outlined in Hey Now Properties are the 24 appropriate, prevailing rates in this district....”); Johnson v. 25

26 2 The court finds Amanda Seabock, Chris Seabock, Isabel Masanque, Elliott Montgomery, Sara Gunderson, Khushpreet Mehton, 27 Robert Doyle, and Bradley Smith have approximately equal or less experience than Dennis Price. Accordingly, their hourly rate 28 will also be set at $150. 1 Pizano, No. 2:17-cv-1655 TLN DB, 2019 WL 2499188, at *7 (E.D. 2 Cal. June 17, 2019) (recommending “a reasonable hourly rate of 3 $300 per hour for attorneys Potter and Handy, $250 for attorney 4 Grace, and $150 for the less experienced associate, attorney 5 Price.”); Johnson v. Powers, No. 2:15-cv-245 WBS AC (PS), 2019 WL 6 2386063, at *1 (E.D. Cal. June 5, 2019). According, the lodestar 7 in this case is $10,590, calculated as follows: 8 Potter: .3 x $300 = $90 9 Handy: 3.6 x $300 = $1,080 10 Grace: 2.1 x $250 = $525 11 Price: 13.1 x $150 = $1,965 12 A. Seabock: 2.3 x $150 = $345 13 C. Seabock: 1.6 x $150 = $240 14 Masanque: 11.7 x $150 = $1,755 15 Montgomery: 1.3 x $150 = $195 16 Gunderson: 1.8 x $150 = $270 17 Mehton: 0 x $150 = $0 18 Doyle: 0 x $150 = $0 19 Smith: 27.5 x $150 = $4,125 20 2. Adjustments to the Lodestar 21 Defendants argue the court should reduce the lodestar 22 by 50 percent to reflect the plaintiff’s limited success. (Opp. 23 at 17.) Alternatively, defendant requests the court subtract the 24 hours plaintiff’s counsel spent preparing its unsuccessful motion 25 for summary judgment. (Id.) 26 To determine whether the amount of fees awarded should 27 be adjusted based on limited success, the court must first ask 28 whether “the plaintiff fail[ed] to prevail on claims that were 1 unrelated to the claims on which he succeeded,” and then whether 2 “the plaintiff achieve[d] a level of success that makes the hours 3 reasonably expended a satisfactory basis for making a fee award.” 4 Ibrahim v. U.S. Dep’t of Homeland Sec., 912 F.3d 1147, 1172 (9th 5 Cir. 2019) (citing Hensley, 461 U.S. at 434). “[C]laims are 6 unrelated if the successful and unsuccessful claims are 7 distinctly different both legally and factually; claims are 8 related, however, if they involve a common core of facts or are 9 based on related legal theories.” Dang v. Cross, 422 F.3d 800, 10 813 (9th Cir.2005) (citations and internal quotation marks 11 omitted) (alterations in original). If the successful claims are 12 unrelated to the unsuccessful claims, “the hours expended on the 13 unsuccessful claims should not be included in the fee award.” 14 Id. Because plaintiff’s claims arise out of a “common core of 15 facts,” the court must focus on the significance of the overall 16 relief plaintiff obtained. 17 In so doing, the court should “give primary 18 consideration to the amount of damages awarded as compared to the 19 amount sought.” Farrar v. Hobby, 506 U.S. 103, 114 (1992). To do 20 so, the court must consider the “excellence of the overall 21 result” including the extent to which a plaintiff’s success 22 “served the public interest by vindicating important 23 constitutional rights” or provided the “public benefit of 24 deterring unconstitutional conduct.” McCown v. City of Fontana, 25 565 F.3d 1097, 1101-02 (9th Cir. 2009). 26 Defendant argues plaintiff did not succeed in this 27 action because the parties’ settlement agreement did not reflect 28 the relief sought. (Opp. at 18-19.) Instead of an injunction 1 and the full amount of statutory damages available for the 2 alleged Unruh Act violations, parties settled “to avoid 3 litigation and buy peace,” settling for a “nuisance value.” 4 (Opp. at 19.) Plaintiff contests defendant’s characterization of 5 the relief, arguing the resulting modification of plaintiff’s 6 property “out of fear of future litigation” and the amount of 7 damages amounts to more than a “nuisance” victory. (Reply at 2-3 8 (Docket No. 53).) 9 The court finds it appropriate to reduce the lodestar 10 by the number of hours spent on the unsuccessful motion for 11 summary judgment. Plaintiff’s argument that he was entitled to 12 judgment as a matter of law based on alleged violations of the 13 California Building Code was inconsistent with clearly 14 established law and bordered on frivolous. Further, there were 15 obviously disputed issues of fact on plaintiff’s claim of a 16 parking lot violation based upon the measurement of the access 17 aisle and his claim that the bathroom was open to the public. In 18 short, the motion for summary judgment was clearly without merit 19 and should never have been made. 20 Three attorneys worked on plaintiff’s motion for 21 summary judgment: Ms. Masanque spent 9.1 hours working on the 22 motion, while Mr. Smith spent 2.5 hours and Mr. Handy spent .1 23 hours reviewing the order denying the motion for summary 24 judgment. (See Billing Statement at 7.) The reduction would be 25 $1,770, calculated as follows: 26 Masanque: 9.1 x $150 = $1,365 27 Smith: 2.5 x $150 = $375 28 Handy: .1 x $300 = $30 1 Accordingly, the court will reduce $1,770 from the 2 lodestar amount of $10,590 to award $8,820. Additionally, in 3 light of the confidentiality of the settlement agreement, the 4 court will not discuss its terms in detail in this order. 5 Suffice it to say it does not come close to reflecting the value 6 of this case had it gone to trial and plaintiff succeeded on the 7 merits. For that reason, the court will further reduce the 8 attorney’s fee by 25 percent, bringing the total amount to 9 $6,615. 10 B. Litigation Expenses & Costs 11 Plaintiff claims litigation costs of $1,407.70. 12 (Billing Statement at 1.) Defendant does not oppose $1,007.70 of 13 these costs, but contests a $400 award for investigators because 14 “[t]here is no accompanying invoice establishing what work was 15 done, when, or why, or why two investigators were necessary in a 16 routine disability access case.” (Opp. at 3-4.) 17 The only evidence provided for the investigators’ costs 18 was Mr. Potter’s declaration, in which he stated “[w]e bill our 19 investigators at $200 per on-site investigation . . . [o]ur 20 investigators did not present me a formal invoice.” (Decl. of 21 Mark Potter (“Potter Decl.”) ¶ 4 (Docket No.43-3).) Other courts 22 in this district have denied costs associated with investigators 23 when parties have failed to provide specific evidence, including 24 in cases involving this plaintiff. See Johnson v. Yates, No. 25 2:14-cv-1189-TLN-EFB, 2017 WL 3438737, at *3 (E.D. Cal. Aug. 10, 26 2017) (finding that “billing $200 for an ambiguous 27 ‘investigation’ without providing supporting documents” was 28 unreasonable); Johnson v. Saleh, 2:16-cv-00617-JAM-KJN, 2018 WL 1 1157494, at *3 (B.D. Cal. Mar. 5, 2018) (denying cost request for 2 investigator because “the Court ha[d] no basis upon which to 3 judge whether these costs were reasonably incurred” due to 4 plaintiff’s failure to include supporting documents). This court 5 | will follow suit and deny plaintiff the $400 fee because it has 6 no way to judge whether the costs were reasonable. 7 IT IS THEREFORE ORDERED that: 8 (1) Plaintiff’s motion for attorney’s fees and costs 9 (Docket No. 43) be, and the same thereby is, GRANTED in part; and 10 (2) Defendant is directed to pay $6,615 in attorney’s 11 fees and $1,007.70 in costs to plaintiff. 12 | Dated: March 19, 2020 be te : 4h. □□□ □ 13 WILLIAM B. SHUBB 14 UNITED STATES DISTRICT JUDGE

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