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4 5 6 7 10 11 CHRIS LANGER, ) Case No.: 3:18-cv-00195-BEN-NLS 12 Plaintiff, ) ) ORDER DENYING DEFENDANTS’ 13 v. ) MOTION FOR ATTORNEY’S FEES 14 MILAN KISER, in individual and ) WITHOUT PREJUDICE UNTIL representative capacity as trustee of the CONCLUSION OF APPEAL 15 Milan and Diana Kiser Revocable Trust ) 16 dated August 19, 2003; DIANA KISER, ) [ECF No. 94, 101, 102] in individual and representative capacity ) 17 as trustee of the Milan and Diana Kiser ) 8 Revocable Trust dated August 19, 2003, ) 19 Defendants. 20/1, INTRODUCTION 21 Plaintiff Chris Langer (“Plaintiff”) brought this action under Title II of tl 22 Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et. seg. (the “ADA”), ar 23 California’s Unruh Civil Rights Act, CAL. Civ. CoDE, §§ 51-53 (the “UCRA”), again 24 Defendants Milan and Diana Kiser, as individuals and in their representative capaciti 25 as trustees of the Milan and Diana Kiser Revocable Trust dated August 19, 20( 26 (collectively, “Defendants”), Complaint, ECF No. 1 (““Compl.”). After a bench trial, t] 27 ; Court entered judgment against Plaintiff on his claim under the ADA and declined 28 exercise supplemental jurisdiction over all other claims. ECF No. 93. -|-
1 Before the Court is Defendants’ Motion for Attorney’s Fees and Costs (th 2 ““Motion”). ECF No. 94. The Motion was submitted on the papers without oral □□□□□□□ 3 } pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civ 4 Procedure. ECF No. 103. After considering the papers submitted, supportir 5 documentation, and applicable law, the Court DENIES Defendants’ Motion f 6 Attorneys’ Fees Without Prejudice to Defendants re-filing the motion after resolution « 7 the pending appeal. 8 Il. BACKGROUND 9 On February 1, 2021, the Court entered its Findings of Fact and Conclusions | 10 Law, which included a detailed recitation of facts, which the Court incorporates herei 11 Findings of Fact and Conclusions of Law, ECF No. 92 (“FFCL”); see also Langer 12 Kiser, No. 3:18-cv-00195-BEN-NLS, 2021 WL 321972, at *1 (S.D. Cal. Feb. 1, 2021 13 ; The Court held that Plaintiff failed to carry his burden of proof as to the ADA clai 14 because the property that he alleged violated the ADA was private property rather than 15 place of public accommodation, and even if it was a place of public accommodatio 16 Plaintiff had not been denied equal access. FFCL at 34. The Court declined to exerci 17 }supplemental jurisdiction over Plaintiffs state law claims as well as Defendant 1g counterclaim for trespass. /d. at 33:22-34:3. Thus, it held that Defendants were fl 19 Prevailing party as to the ADA claim and instructed the Clerk of the Court to ent 49 Judgment in their favor. Jd. at 34. That same day, the Clerk of the Court enter 91 Judgment accordingly. See ECF No. 93. 93 On February 16, 2021, Defendants also submitted their Bill of Costs in the amou 93 of $991.10, ECF No. 95 at 1, and also timely filed their Motion for Attorneys’ Fee 74 seeking $40,768.75 in attorney’s fees, ECF No. 94. See FED. R. Civ. P. 54(d)(2)( 29 Although the Court did not expressly state that it awarded costs because it four 26 the case frivolous under Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978 7 the reason it awarded costs to Defendants was because it did, in fact, find Plaintiff's ca: to be frivolous, as indicated by the detailed factua! findings and conclusions in tl 28 Court’s Findings of Fact and Conclusions of Law. -2-
1 (requiring a motion for attorney’s fees to “be filed no later than 14 days after the entry « 2 ;judgment”). Defendants submitted contemporaneous time records of their counsel, Sam 3 Henein, disclosing a total of 148.25 hours devoted to this matter at Mr. Henein’s billir 4 rate of $275.00 per hour. Jd. at 2:20-24, Defendants argue that they should receive the 5 attorney’s fees because “Plaintiff's claims were frivolous, unreasonable or withor 6 foundation ab initio” given “[t]he fact that the parking lot was not a place of publ 7 accommodation was obvious.” Motion, ECF No. 94-1 (“Mot.”) at 3:25-26. On February 23, 2021, Plaintiff filed an Objection to Defendants’ Bill of Cost 9 ECF No. 96. That same day, Plaintiff opposed Defendant’s Motion for Attorney’s Fee 10 and Costs arguing that there is no basis for the Court to award Defendants their fee ll because he “had both factual and legal support for his claims, although he ultimate. 12 failed to carry his burden at trial.” Opposition, ECF No. 101 (“Oppo.”) at 4:2-9. 13 Six days later, on March 1, 2021, Plaintiff filed a Notice of Appeal, which advis« 14 that the principal issues proposed to be raised on appeal were whether the Court ( 15 properly applied the law to the facts admitted at trial; (2) admitted improper charact 16 evidence; and (3) erred in awarding costs without making a finding under Christianbui 17 Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). ECF No. 97. 18 On March 11, 2021, Defendants filed a reply brief, arguing that because □□□□□ 19 evidence that the lot was not a place of public accommodation was obvious,” it w: 20 unreasonable for Plaintiff to maintain this lawsuit. ECF No. 102 at 2:15-16. 29 The Ninth Circuit Court of Appeals has “jurisdiction of appeals from all fin 3 decisions of the district courts of the United States.” 28 U.S.C. § 1291; see also Wakefie 74 Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999). “A ruling is final for purposes of 25 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge intention that it be the court’s final act in the matter.” Reed v. Lieurance, 863 F.3d 119 1212 (9th Cir. 2017). Where a party files a motion for attorney’s fees before a notice 38 appeal has been filed, as was the case here, the Court retains discretion to rule on t -3-
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4 5 6 7 10 11 CHRIS LANGER, ) Case No.: 3:18-cv-00195-BEN-NLS 12 Plaintiff, ) ) ORDER DENYING DEFENDANTS’ 13 v. ) MOTION FOR ATTORNEY’S FEES 14 MILAN KISER, in individual and ) WITHOUT PREJUDICE UNTIL representative capacity as trustee of the CONCLUSION OF APPEAL 15 Milan and Diana Kiser Revocable Trust ) 16 dated August 19, 2003; DIANA KISER, ) [ECF No. 94, 101, 102] in individual and representative capacity ) 17 as trustee of the Milan and Diana Kiser ) 8 Revocable Trust dated August 19, 2003, ) 19 Defendants. 20/1, INTRODUCTION 21 Plaintiff Chris Langer (“Plaintiff”) brought this action under Title II of tl 22 Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et. seg. (the “ADA”), ar 23 California’s Unruh Civil Rights Act, CAL. Civ. CoDE, §§ 51-53 (the “UCRA”), again 24 Defendants Milan and Diana Kiser, as individuals and in their representative capaciti 25 as trustees of the Milan and Diana Kiser Revocable Trust dated August 19, 20( 26 (collectively, “Defendants”), Complaint, ECF No. 1 (““Compl.”). After a bench trial, t] 27 ; Court entered judgment against Plaintiff on his claim under the ADA and declined 28 exercise supplemental jurisdiction over all other claims. ECF No. 93. -|-
1 Before the Court is Defendants’ Motion for Attorney’s Fees and Costs (th 2 ““Motion”). ECF No. 94. The Motion was submitted on the papers without oral □□□□□□□ 3 } pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civ 4 Procedure. ECF No. 103. After considering the papers submitted, supportir 5 documentation, and applicable law, the Court DENIES Defendants’ Motion f 6 Attorneys’ Fees Without Prejudice to Defendants re-filing the motion after resolution « 7 the pending appeal. 8 Il. BACKGROUND 9 On February 1, 2021, the Court entered its Findings of Fact and Conclusions | 10 Law, which included a detailed recitation of facts, which the Court incorporates herei 11 Findings of Fact and Conclusions of Law, ECF No. 92 (“FFCL”); see also Langer 12 Kiser, No. 3:18-cv-00195-BEN-NLS, 2021 WL 321972, at *1 (S.D. Cal. Feb. 1, 2021 13 ; The Court held that Plaintiff failed to carry his burden of proof as to the ADA clai 14 because the property that he alleged violated the ADA was private property rather than 15 place of public accommodation, and even if it was a place of public accommodatio 16 Plaintiff had not been denied equal access. FFCL at 34. The Court declined to exerci 17 }supplemental jurisdiction over Plaintiffs state law claims as well as Defendant 1g counterclaim for trespass. /d. at 33:22-34:3. Thus, it held that Defendants were fl 19 Prevailing party as to the ADA claim and instructed the Clerk of the Court to ent 49 Judgment in their favor. Jd. at 34. That same day, the Clerk of the Court enter 91 Judgment accordingly. See ECF No. 93. 93 On February 16, 2021, Defendants also submitted their Bill of Costs in the amou 93 of $991.10, ECF No. 95 at 1, and also timely filed their Motion for Attorneys’ Fee 74 seeking $40,768.75 in attorney’s fees, ECF No. 94. See FED. R. Civ. P. 54(d)(2)( 29 Although the Court did not expressly state that it awarded costs because it four 26 the case frivolous under Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978 7 the reason it awarded costs to Defendants was because it did, in fact, find Plaintiff's ca: to be frivolous, as indicated by the detailed factua! findings and conclusions in tl 28 Court’s Findings of Fact and Conclusions of Law. -2-
1 (requiring a motion for attorney’s fees to “be filed no later than 14 days after the entry « 2 ;judgment”). Defendants submitted contemporaneous time records of their counsel, Sam 3 Henein, disclosing a total of 148.25 hours devoted to this matter at Mr. Henein’s billir 4 rate of $275.00 per hour. Jd. at 2:20-24, Defendants argue that they should receive the 5 attorney’s fees because “Plaintiff's claims were frivolous, unreasonable or withor 6 foundation ab initio” given “[t]he fact that the parking lot was not a place of publ 7 accommodation was obvious.” Motion, ECF No. 94-1 (“Mot.”) at 3:25-26. On February 23, 2021, Plaintiff filed an Objection to Defendants’ Bill of Cost 9 ECF No. 96. That same day, Plaintiff opposed Defendant’s Motion for Attorney’s Fee 10 and Costs arguing that there is no basis for the Court to award Defendants their fee ll because he “had both factual and legal support for his claims, although he ultimate. 12 failed to carry his burden at trial.” Opposition, ECF No. 101 (“Oppo.”) at 4:2-9. 13 Six days later, on March 1, 2021, Plaintiff filed a Notice of Appeal, which advis« 14 that the principal issues proposed to be raised on appeal were whether the Court ( 15 properly applied the law to the facts admitted at trial; (2) admitted improper charact 16 evidence; and (3) erred in awarding costs without making a finding under Christianbui 17 Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). ECF No. 97. 18 On March 11, 2021, Defendants filed a reply brief, arguing that because □□□□□ 19 evidence that the lot was not a place of public accommodation was obvious,” it w: 20 unreasonable for Plaintiff to maintain this lawsuit. ECF No. 102 at 2:15-16. 29 The Ninth Circuit Court of Appeals has “jurisdiction of appeals from all fin 3 decisions of the district courts of the United States.” 28 U.S.C. § 1291; see also Wakefie 74 Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999). “A ruling is final for purposes of 25 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge intention that it be the court’s final act in the matter.” Reed v. Lieurance, 863 F.3d 119 1212 (9th Cir. 2017). Where a party files a motion for attorney’s fees before a notice 38 appeal has been filed, as was the case here, the Court retains discretion to rule on t -3-
1 motion even if another party subsequently appeals the underlying judgment. FED. R. Cr 2 P. 58(e), 59(e). In such a scenario, the Notice of Appeal becomes effective to appeal 3 judgment once the order disposing of the fee motion is entered. FED. R. APP. P. 4(a)(4 4 However, although a district court has the ability to rule on a motion for attorney’s □□ 5 during the pendency of an appeal, it also maintains the discretion to deny the motic 6 without prejudice so that it may “revisit the question of an award of attorney fees, 7 appropriate, following the resolution of [an] appeal.” See, e.g., id. at 1212-13 (holdir g ||that the Ninth Circuit lacked jurisdiction to review the district court’s denial withor 9 prejudice to the defendants’ fees motion where “[t]he district court clearly intended 1 10 {revisit the question of an award of attorney fees” following the appeal). 11 On March 19, 2021, the Ninth Circuit decided the case of Green v. Mercy Hou: 12 Jne., No. 20-15134, 2021 WL 1049460 (9th Cir. Mar. 19, 2021), where the plaintiff, lik 13 Plaintiff here, cited to Christianburg and argued “that the district court abused i 14 discretion in taxing costs to Mercy Housing without first determining that Green’s claii 15 was ‘frivolous, unreasonable, or groundless.” Jd. at *1. The Ninth Circuit noted that 16 had “not previously addressed whether the Christiansburg standard applies to the Fa 7 Housing Act.” Jd. However, in an issue of first impression, it held “that 18 does.” Jd. Given cases involving the Christianburg standard have been held to apply □ 19 civil rights cases involving both the Fair Housing Act and ADA, the Court finds that th 20 recent holding may apply to this case. However, the holding, although requiring tl Court to find a case frivolous in order to award costs does not explicitly state what tl district court must say in its order in order to satisfy the requirements under Green. Thus, this Court exercises its discretion to deny Defendants’ Motion for Attorney Fees without prejudice to Defendants re-filing the motion after conclusion of the pendir 95 appeal, as set forth below.
IV. CONCLUSION
For the above reasons, the Court rules as follows:
38 l. Defendants’ Motion for Attorneys’ Fees and Costs is DENIED WITHOU -4.
1 PREJUDICE to Defendants re-filing the same motion after resolution of Plaintiff 2 pending appeal. 3 2, If Defendants re-file their motion, it shall be filed within thirty (30) days c 4 any decision from the Ninth Circuit. If the parties so desire, they may file a documer 5 simply referring the Court to the ECF Number of their original briefing (i.e., motiot 6 opposition, and reply brief) rather than submittingfew briefing. 8 DATED: anit 2001 9 OGER T. BENITEZ 10 nited States District Judge 11 12 13
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