Orlando Garcia v. Apple Seven Services SPE San Diego, Inc.

• Court: District Court, C.D. California
• Decided: March 21, 2022
• Docket: 2:21-cv-00841
• Status: Unknown

Opinion

Case 2:21-cv-00841-ODW-PVC Document 28 Filed 03/21/22 Page 1 of 9 Page ID #:428

O 1

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8 United States District Court 9 Central District of California

11 ORLANDO GARCIA, Case № 2:21-CV-00841-ODW (PVC)

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING AS MOOT MOTION FOR 14 APPLE SEVEN SERVICES SPE SAN ATTORNEYS’ FEES OR IN THE 15 DIEGO, INC., ALTERNATIVE, SANCTIONS [22]

Defendant. 16

17 I. INTRODUCTION 18 Defendant Apple Seven Services SPE San Diego, Inc. (“Apple Seven”) moves 19 to recover attorneys’ fees or, in the alternative, sanctions from Plaintiff Orlando 20 Garcia, in the amount of $16,463.65. (Mot. Att’y Fees/Sanctions (“Mot.” or 21 “Motion”), ECF No. 22.) Garcia opposes. (Pl.’s Opp’n Mot., ECF No. 25.) For the 22 reasons discussed below, the Court GRANTS the Motion and awards Apple Seven 23 $15,273.65 in attorneys’ fees.1 24 II. FACTUAL AND PROCEDURAL BACKGROUND 25 Apple Seven owns and operates a Courtyard by Marriott hotel (“Marriott”). 26 (First Am. Compl. (“FAC”) ¶ 2, ECF No. 9.) Garcia initiated this action against 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-00841-ODW-PVC Document 28 Filed 03/21/22 Page 2 of 9 Page ID #:429

1 Apple Seven alleging that Marriott’s hotel reservations website lacked sufficient 2 accessibility information, in violation of the Americans with Disabilities Act (“ADA”) 3 and the Unruh Civil Rights Act (“Unruh Act”). (FAC ¶¶ 35–42.) On August 11, 4 2021, the Court granted Apple Seven’s Motion to Dismiss, dismissing Garcia’s ADA 5 claim on the merits with prejudice and the Unruh Act claim without prejudice. (Order 6 Granting Mot. Dismiss (“Order”), ECF No. 17.) Specifically, the Court found that the 7 description of an “accessible room” on Marriott’s website was compliant with ADA 8 requirements. (Id. at 6.) 9 Garcia brought virtually identical lawsuits against Marriott and other hotels 10 regarding accessibility information on the hotels’ websites. Many, if not most, of 11 those cases have been dismissed by district courts. (See Mot., Ex. 1 (“Master List Of 12 Dismissed Website Accessibility Cases”).) In light of the abundance of nearly 13 uniform dismissals, Apple Seven contends this suit was frivolous, vexatious, 14 unreasonable, and brought in bad faith. (Mot. 12–18.) Thus, Apple Seven filed the 15 instant Motion seeking $16,463.65 in attorneys’ fees or, alternatively, sanctions 16 pursuant to Federal Rule Civil Procedure (“Rule”) 11. (Id. at 20.) 17 III. LEGAL STANDARD 18 The ADA provides that “the court in its discretion, may allow the prevailing 19 party . . . a reasonable attorney’s fee, including litigation expenses and costs.” 20 42 U.S.C. § 12205. “When the prevailing party is the defendant, attorneys’ fees 21 should be awarded ‘only if the plaintiff’s action was frivolous, unreasonable, or 22 without foundation.’” Garcia v. Guadalupe Alcocer & Digit. Currency Servs., Inc., 23 No. CV 08419-VAP (JEMx), 2022 WL 495051, at *1 (C.D. Cal. Jan. 19, 2022) 24 (quoting Brown v. Lucky Stores, 246 F.3d 1182, 1190 (9th Cir. 2001)). “The purpose 25 of awarding fees to a prevailing defendant is ‘to deter the bringing of lawsuits without 26 foundation.’” Id. (quoting CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419, 432 27 (2016)). 28

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1 IV. DISCUSSION 2 In its Motion, Apple Seven contends that it is entitled to attorneys’ fees because 3 this action was frivolous, vexatious, groundless, and was filed in bad faith. (Mot. 12– 4 16.) Apple Seven alternatively moves for sanctions under Rule 11, 28 U.S.C. § 1927. 5 (Id. at 20–25.) The Court does not reach the question of sanctions because it finds 6 attorneys’ fees justified under § 12205.2 7 A. Frivolous, Unreasonable, or Groundless 8 The Court first considers whether Garcia’s claims were frivolous. “A[n] [ADA] 9 plaintiff should not be assessed his opponent’s attorneys’ fees unless a court finds that 10 his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to 11 litigate after it clearly became so.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 12 412, 422 (1978)). Under the ADA, attorneys’ fees are appropriately awarded to a 13 prevailing defendant where a plaintiff pursues a frivolous or “burdensome litigation 14 having no legal or factual basis.” Whitaker v. 370 N. Canon Drive, LP, No. CV 19- 15 02918-CJC (GJSx), 2020 WL 6130139, at *1 (C.D. Cal. Oct. 8, 2020) (quoting 16 Christiansburg, 434 U.S. at 420) aff’d, No. 20-56068, 2021 WL 4892168 (9th Cir. 17 Oct. 20, 2021). Generally, a case may be “deemed frivolous only when the result is 18 obvious or the . . . arguments of error are wholly without merit.” Karam v. City of 19 Burbank, 352 F.3d 1188, 1195 (9th Cir. 2003) (internal quotation marks omitted); see 20 also Amphastar Pharms. Inc. v. Aventis Pharma SA, No. EDCV-09-0023 MJG, 2017 21 WL 10543563, at *8 (C.D. Cal. Nov. 20, 2017) (finding the plaintiff’s claim was 22 frivolous because the plaintiff “had no reasonable foundation on which to bring the 23 suit” and “knew or should have known that the Court would not have jurisdiction”). 24 Courts may consider a plaintiff’s litigation history to determine whether an action was 25 frivolous or unreasonable. See Guadalupe Alcocer, 2022 WL 495051, at *3; Strojnik 26

2 42 U.S.C. § 12205 provides, “In any action or administrative proceeding commenced pursuant to 27 this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the 28 United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.”

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1 v. 1017 Coronado, Inc., No. 19-cv-02210-BAS (MSB), 2021 WL 120899, at *3 2 (S.D. Cal. Jan. 13, 2021) (finding that the conduct of filing lawsuits plaintiff knows 3 will be dismissed is frivolous, unreasonable, and groundless). 4 Here, the Court dismissed Garcia’s action for failure to state a claim for 5 violation of the ADA. (Order 7.) Dismissal for a failure to state a claim does not by 6 itself make a claim frivolous or unreasonable. However, the Court considers Garcia’s 7 litigation history as a whole to support its finding that this action was frivolous. 8 That litigation history demonstrates that Garcia knew that merely describing a 9 hotel room as “accessible” is legally sufficient to support ADA compliance. 10 Specifically, Garcia has filed numerous complaints against hotels alleging claims that 11 are similar if not identical to those in this action. For example, in February 2021, 12 Judge Percy Anderson of the Central District of California dismissed Garcia’s action 13 against Gateway Hotel, L.P. for failure to state a claim that Gateway’s website 14 violated the ADA. See Garcia v. Gateway Hotel L.P., No. CV 20-10752-PA (GJSx), 15 2021 WL 936176, at *5 (C.D. Cal. Feb. 25, 2021). Garcia’s complaint in that case is 16 almost identical to the Complaint filed in this action. (Compare FAC ¶¶ 1, 12–14, 16, 17 21–25, 30,) with Gateway, 2021 WL 936176, at *1–2. And in that case, the court 18 dismissed Garcia’s complaint before Garcia filed the First Amended Complaint in this 19 case, providing Garcia with ample opportunity to correct the same deficiencies when 20 amending the operative complaint here. 21 In April 2021, Judge John A. Mendez in the Eastern District of California 22 dismissed Garcia’s substantially similar action against E.L. Heritage Inn of 23 Sacramento LLC, where Garcia yet again alleged the same ADA violation based on 24 the hotel’s website. See Garcia v. E.L. Heritage Inn of Sacramento, LLC, 25 No. 2:20-cv-02191-JAM (AC), 2021 WL 1253346, at *1–2 (E.D. Cal. Apr. 5, 2021). 26 Also in April 2021, Judge George H. Wu in the Central District of California 27 dismissed Garcia’s similar action against WH Manhattan Beach, another Courtyard by 28 Marriot hotel, for failure to state the same ADA claim concerning the hotel’s website.

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1 Garcia v. WH Manhattan Beach L.P., No. 2:20-cv-11698-GW (JEMx), 2021 WL 2 4260661, at *6 (C.D. Cal. Apr. 29, 2021). 3 Those lawsuits above were all dismissed by detailed orders, based on the same 4 specific reasoning that the hotels in question did not violate the ADA because their 5 respective websites provided for “accessible” rooms, which by definition means 6 ADA-compliant. Specifically, those dismissal orders cite the Department of Justice’s 7 2010 guidance on compliance with the ADA for hotel reservations (the “DOJ 2010 8 Guidance”). “Because of the wide variations in the level of accessibility that travelers 9 will encounter . . . it may be sufficient to specify that the hotel is accessible” and 10 provide basic facts about accessible rooms. WH Manhattan Beach, 2021 WL 11 4260661, at *5; see also Gateway Hotel, 2021 WL 936176, at *4; Heritage Inn, 12 2021 WL 1253346, at *2 (quoting DOJ Guidance). Thus, Garcia was on notice of the 13 DOJ guidelines and the policies cited therein and knowingly filed multiple actions in 14 direct contradiction to those policies. 15 Additionally, Garcia knew or should have known that this case would also be 16 dismissed for failure to state a claim, like the other dismissed cases, because the 17 dismissals in those cases notified Garcia of the law regarding ADA hotel reservation 18 website requirements. Nevertheless, Garcia continued to use litigation to baselessly 19 target hotel websites that are ADA-compliant. The many dismissals Garcia has 20 suffered from multiple courts provided him with notice that if he presented the same 21 claims for the same issues, following the same fact patterns and without additional 22 support, then the action would be dismissed. Yet, Garcia proceeded to do so, 23 inflicting needless burdens on the courts. 24 Garcia’s conduct of filing meritless lawsuits against hotels with ADA- 25 compliant websites convincingly demonstrates that the present action is both frivolous 26 and unreasonable. See Strojnik, 2021 WL 120899, at *4 (finding the action frivolous 27 because the plaintiff filed numerous unsuccessful lawsuits with similar allegations and 28 therefore should have known that additional actions based on the same allegations

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1 would be dismissed for the same reasons). Accordingly, the Court concludes that 2 Apple Seven is entitled to attorneys’ fees under § 12205. 3 B. Reasonable Attorneys’ Fees 4 Apple Seven seeks $16,463.65 in attorneys’ fees. (Mot. 20.) This figure is 5 based on Apple Seven’s attorney having worked 27.65 hours at a rate of $595/hour, 6 plus an anticipated additional two hours of work related to this Motion. (Id.) For the 7 following reasons, the Court finds Apple Seven is entitled to $15,273.65 in attorneys’ 8 fees for the 27.65 hours already worked but is not entitled to recover for the 9 anticipated two additional hours of work. 10 In ADA cases, courts calculate attorneys’ fees using the lodestar approach. See 11 Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018). “The ‘lodestar’ 12 is calculated by multiplying the number of hours the prevailing party reasonably 13 expended on the litigation by a reasonable hourly rate.” 370 N. Canon Drive, 14 2020 WL 6130139, at *4 (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 15 1149 n.4 (9th Cir. 2001)). 16 Once the court has calculated the lodestar, “[t]here remain other considerations 17 that may lead the district court to adjust the fee upward or downward, including the 18 important factor of the results obtained.” Hensley v. Eckerhart, 461 U.S. 424, 434 19 (1983) (internal quotation marks omitted). There is a strong presumption, however, 20 that the lodestar figure represents a reasonable fee. See Jordan v. Multnomah Cnty., 21 815 F.2d 1258, 1262 (9th Cir. 1987) (citing Pennsylvania v. Del. Valley Citizens’ 22 Council for Clean Air, 478 U.S. 546, 564–65 (1986)). Using the lodestar method, the 23 Court must determine whether the hourly rate and the number of hours expended are 24 reasonable. 25 1. Reasonable Rate Charged 26 The party seeking attorneys’ fees bears the burden of “submitting evidence of 27 the hours worked,” the rate charged, and that “the rate charged is in line with the 28 prevailing market rate of the relevant community.” Carson v. Billings Police Dep’t,

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1 470 F.3d 889, 891 (9th Cir. 2006) (internal quotation marks omitted). “Generally, the 2 relevant community is the forum in which the district court sits.” Barjon v. Dalton, 3 132 F.3d 496, 500 (9th Cir. 1997). The established standard when determining a 4 reasonable hourly rate is the “rate prevailing in the community for similar work 5 performed by attorneys of comparable skill, experience, and reputation.” Id. at 502. 6 The district court may rely on its own knowledge of customary rates and its familiarity 7 with the legal market to determine a reasonable and proper fee. See Ingram v. 8 Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). 9 Here, Apple Seven’s attorney, Philip Stillman, requests a rate of $595 per hour. 10 Attorney Stillman has been a civil litigator in California for thirty years. (Decl. Philip 11 Stillman (“Stillman Decl.”) ¶ 9, ECF No. 22-2.) He provides a copy of the Mid-Year 12 2020 “Real Rate Report” for the Los Angeles area, listing hourly rates for litigation 13 attorneys with the same level of experience. (Id. Ex. 2 (“2020 Real Rate Report”).) 14 Based on this Report and his own research, Attorney Stillman determined that the 15 average hourly rate for litigation partners in Los Angeles with more than twenty-one 16 years of experience is $797—well above his requested rate of $595. (Id.) Attorney 17 Stillman further notes that the U.S. District Court for the Northern District of 18 California recently awarded him a rate of $550 per hour, in an ADA action. (Id.) 19 However, the Northern District of California is not the “relevant community.” See 20 Barjon, 132 F.3d at 500. The Central District of California is. 21 In this District, Judge Virginia Phillips recently found $500 per hour in a similar 22 ADA action as a reasonable rate for an attorney with experience similar to that of 23 Attorney Stillman. See Guadalupe Alcocer, 2022 WL 495051, at *5 (“Given 24 counsel's extensive litigation experience over the course of forty years, with nearly 25 twenty years of specialized work on ADA cases, the Court concludes his hourly rate 26 of $500 is reasonable and consistent with customary rates in the legal market of the 27 Central District of California.”). And because Garcia does not object to Attorney 28 Stillman’s requested rate, this Court finds Judge Phillips’s assessment of a reasonable

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1 rate in similar circumstances persuasive. Thus, the Court finds that $595 is a 2 reasonable hourly rate. 3 2. Reasonable Hours Worked 4 In determining the reasonableness of the number of hours expended, the Court 5 must examine detailed time records to determine whether the hours claimed are 6 adequately documented and whether any of them are unnecessary, duplicative, or 7 excessive. See Hensley, 461 U.S. at 433–34. The Court, due to its familiarity with the 8 case, is in the best position to evaluate the reasonableness of the hours requested. 9 Moreno v. City of Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008). 10 Here, Apple Seven requests attorneys’ fees for a total of 27.67 hours worked. 11 (Stillman Decl. ¶ 12.) In support of this total, Attorney Stillman provides an invoice 12 with a detailed breakdown of the 25.67 hours worked from January 28, 2021, to 13 August 25, 2021. (Id. Ex. 1 (“Invoice”).) The Invoice includes time spent drafting 14 and reviewing emails between Attorney Stillman and Apple Seven, editing and 15 preparing the Motion at hand, preparing the previous Motion to Dismiss, preparing the 16 initial Notice of Removal, and other tasks completed in defense of this case. (See 17 Invoice.) Moreover, the Invoice adequately describes each task, the relevant dates, 18 and the amount of time expended per task. (Id.) Attorney Stillman even notes that 19 because he has so many of these ADA cases, the number of hours he spends preparing 20 briefs and motions are significantly fewer than would otherwise be required. 21 (Stillman Decl. ¶ 11.) Although Attorney Stillman has litigated many ADA cases, and 22 the briefs and motions filed in this case may be similar to filings in his other cases, the 23 Court finds none of the charges here are duplicative, unnecessary, or excessive. The 24 time expended on each task is reasonable. Thus, the Court finds the 25.67 hours 25 Attorney Stillman expended on this case reasonable. 26 Attorney Stillman also requests an additional two hours for the work he 27 “anticipate[d]” spending to prepare a Reply memorandum and preparing for the 28 hearing on this Motion. (Id. ¶ 13.) However, Apple Seven did not submit a Reply

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1 || memorandum in support of this Motion and the Court did not hold a hearing. (See 2 || ECF No. 26 (vacating the hearing and taking the Motion under submission without 3 | oral argument).) Accordingly, the Court disregards the requested additional two hours. 5 Multiplying the 25.67 hours spent defending this case by the reasonable hourly 6 | rate of $595, the Court awards Apple Seven a total of $15,273.65 in attorneys’ fees. 7 Vv. CONCLUSION 8 For the reasons discussed above, the Court GRANTS Apple Seven’s Motion 9 | for Attorneys’ Fees and Orders Garcia to pay $15,273.65 in attorneys’ fees. (ECF 10 | No. 22.) 1] 12 IT IS SO ORDERED. 13 aes 14 March 21, 2022 GMBWE 15 v7 16 7 OTIS D. WRIGHT, I ig UNITED STATES DISTRICT JUDGE

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