1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 CECIL EUGENE SHAW, Case No.16-cv-03768-VKD
9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS’ FEES 11 RANDY KELLEY, et al., AND COSTS 12 Defendants. Re: Dkt. No. 109
13 14 I. BACKGROUND 15 Plaintiff Cecil Shaw filed this disability rights action, claiming that, during an August 21, 16 2014 visit, he was denied full and equal access at a Burger Pit restaurant (“Restaurant”) in San 17 Jose, California. He asserted claims under Title III of the Americans with Disabilities Act of 1990 18 (“ADA”), 42 U.S.C. § 12101, et seq., and the California Unruh Civil Rights Act (“Unruh Act”), 19 Cal. Civ. Code §§ 51-53.1 20 The Court granted in part and denied in part Mr. Shaw’s motion for summary judgment. 21 That motion was granted with respect to several barriers in the parking lot, paths of travel, dining 22 area and restroom. Dkt. No. 79. However, the motion was denied as to a number of other barriers 23 which no longer existed or apparently had already been remedied. See, e.g., id. at 8-9. Mr. 24 Shaw’s motion was also denied as to 17 of the 30 alleged barriers that were identified in his 25 expert’s report, but which were not included in any of Mr. Shaw’s complaints.2 Id. at 5. The 26 1 All parties have expressly consented that all proceedings in this matter may be heard and finally 27 adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. 1 Court awarded $4,000 in statutory damages under the Unruh Act, but denied Mr. Shaw’s request 2 for an additional $4,000 for “ongoing deterrence” damages. Id. at 16-18. 3 Mr. Shaw subsequently filed a notice of settlement, stating that the parties reached a 4 settlement “with respect to the outstanding injunctive issues.” Dkt. No. 92. However, there was 5 some delay in the proceedings after defendants failed to respond to Mr. Shaw’s proposed consent 6 decree. Additionally, Mr. Shaw’s initial proposed consent decree filed with the Court contained 7 what Mr. Shaw later said were inadvertent errors (for example, statements indicating that the 8 amount of damages were still disputed). Dkt. Nos. 102-104. The Court issued an order to show 9 cause why the parties should not be sanctioned. Dkt. No. 101. Following a hearing on the matter, 10 the Court discharged the order to show cause, and the parties jointly submitted a corrected 11 proposed consent decree. Dkt. Nos. 106, 108. That proposed decree indicated that with respect to 12 injunctive relief, the parties agreed that defendants would “ensure that [the] threshold at all the 13 entrance doors are less than 1/2 [inch] in height.” Dkt. No. 110. at 8. The Court entered that 14 consent decree on April 29, 2019. Dkt. No 110. 15 Because the parties were unable to resolve Mr. Shaw’s request for attorneys’ fees, he now 16 moves for an award of fees and costs in the amount of $65,515.75. Defendants oppose the motion. 17 At the Court’s request, Mr. Shaw submitted supplemental papers specifying the time (initially 18 provided as estimates) his attorneys spent preparing his reply papers and appearing at the motion 19 hearing. Dkt. Nos. 117, 118. Upon consideration of the moving and responding papers, as well as 20 the oral arguments presented, the Court grants Mr. Shaw’s motion in part and denies it in part. 21 II. DISCUSSION 22 The ADA gives courts the discretion to award attorney’s fees, including litigation expenses 23 and costs, to prevailing parties. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) 24 (citing 42 U.S.C. § 12205). Similarly, the Unruh Act provides for an award of fees “as may be 25 determined by the court.” Cal. Civ. Code §§ 52(b)(3), 52.1(c). 26 Whether calculating attorney’s fees under California or federal law, courts follow the 27 1 lodestar approach. “The most useful starting point for determining the amount of a reasonable fee 2 is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly 3 rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), abrogated on other grounds by Tex. State 4 Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989). The party seeking an award of 5 fees should submit evidence supporting the hours worked and rates claimed. Id. 6 Preliminarily, the Court notes that although Mr. Shaw was not successful as to all of the 7 barriers he pursued in this case, he is a prevailing party, having obtained both injunctive relief and 8 damages. For the first time at the motion hearing, defendants took the position that Mr. Shaw is 9 not a prevailing party. However, defendants made no such argument in their papers. Moreover, as 10 discussed below, the Court understands defendants’ argument as one more appropriately directed 11 to a reduction in the requested fees. 12 A. Reasonable Hourly Rate 13 “In determining a reasonable hourly rate, the district court should be guided by the rate 14 prevailing in the community for similar work performed by attorneys of comparable skill, 15 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 16 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing Blum v. 17 Stenson, 465 U.S. 886, 895 n.11 (1984)). “Generally, the relevant community is the forum in 18 which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The fee 19 applicant has the burden of producing evidence, other than declarations of interested counsel, that 20 the requested rates are in line with those prevailing in the community for similar services by 21 lawyers of reasonably comparable skill, experience and reputation. Blum, 465 U.S. at 896 n.11. 22 “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the 23 community, and rate determinations in other cases, particularly those setting a rate for the 24 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 25 of America v. Phelps Dodge Co., 896 F.2d 403, 407 (9th Cir. 1990). 26 Mr. Shaw seeks fees based on the hourly rates of the following 14 attorneys: Mark Potter 27 ($650/hour); Raymond G. Ballister ($650/hour); Phyl Grace ($650/hour); Mary Melton 1 Amanda Seabock (sometimes referred to in the papers as “Amanda Lockhart”) ($500/hour); Chris 2 Seabock ($500/hour); Teresa Allen ($500/hour); Kushpreet Mehton ($500/hour); Matt Valenti 3 ($410/hour); Sara Gunderson ($410/hour); and Elliott Montgomery ($410/hour).3 4 To support the reasonableness of the identified hourly rates, Mr. Shaw relies on a 5 declaration from Mr. Potter, one of the attorneys for whom fees are sought. Dkt. No. 109-4. Mr. 6 Potter’s declaration includes a description of the attorneys’ qualifications and experience, as well 7 as a billing statement for work performed in this case. Mr. Potter’s declaration concludes with the 8 following assertion: 9 Because the nature of my practice is wholly dependent on billing at a market rate, I have extensive experience with respect to what 10 attorneys specializing in disability law and civil rights bill for civil litigation and what courts are routinely awarding and can attest that 11 the rates billed by the Center for Disability Access for its attorneys are well within market rates. 12 13 Dkt. No. 109-4 ¶ 22. Mr. Potter does not actually identify the rates at which attorneys specializing 14 in disability and other civil rights matters bill for civil litigation, even though he asserts that he has 15 “extensive experience” with respect to that information, and even though he says his practice 16 depends on “billing at a market rate.” 17 Mr. Shaw’s fees request contains scant information about the prevailing market rate for 18 similar work performed by attorneys of comparable skill, experience, and reputation in this 19 community. He has not submitted declarations from other attorneys attesting to the 20 reasonableness of the claimed rates. Instead, the primary “market” on which he relies to support 21 the claimed hourly rates is comprised of decisions between 2011 and 2019 issued by courts in this 22 district tasked with deciding fees motions like his. These cases are listed in a chart in Mr. Shaw’s 23 moving papers. Dkt. No. 109-1 at 10-11. 24
25 3 Mr. Shaw’s motion papers contain no information about an additional attorney identified in the appended billing statement as “P. Price,” and later identified for the Court at the motion hearing as 26 Prathima Price. The failure to provide such information precludes an award of fees for that attorney. See Johnson v. AutoZone, No. 17-cv-02941-PJH, 2019 WL 2288111, at *6 (N.D. Cal. 27 May 29, 2019) (concluding that plaintiff failed to meet his burden to justify the billing rate for an 1 Two of the cited cases, Armstrong v. Brown, 805 F. Supp. 2d 918 (N.D. Cal. 2011) and 2 Elder v. Nat’l Conference of Bar Examiners, No. C11-00199 SI, 2011 WL 4079623 (N.D. Cal., 3 Sept. 12, 2011) were decided at least two years before Mr. Shaw’s counsel performed the services 4 at issue here.4 The Court is required to consider cases that were decided relatively 5 contemporaneously with the time the work was performed. See Camacho v. Bridgeport Fin., Inc., 6 523 F.3d 973, 981 (9th Cir. 2008) (noting that “in determining the prevailing market rate a district 7 court abuses its discretion to the extent it relies on cases decided years before the attorneys 8 actually rendered their services.”); Bell v. Clackamas County, 858 F.3d 858, 869 (9th Cir. 2003) 9 (holding that it was an abuse of discretion for the district court to apply rates in effect more than 10 two years before the work was performed). Mr. Shaw’s attorneys performed work in this case 11 from May 2016 through June 2019. In the absence of other evidence of what attorneys of 12 comparable skill, experience, and reputation were billing for similar work performed during the 13 relevant time period in the relevant market, the Court considers more recent decisions involving 14 ADA disputes like this one. 15 Here, Mr. Shaw principally relies on Love v. Rivendell II, Ltd., et al., Case No. 18-cv- 16 03907-JST (EDL) (N.D. Cal., Mar. 11, 2019), which approved the claimed rates of $650/hour for 17 Mr. Potter and Ms. Grace, as well as a $410 hourly rate for Ms. Carson and Mr. Price. See 18 Rivendell, Dkt. No. 25 (report and recommendation); see also Dkt. No. 30 (order adopting report 19 and recommendation). Mr. Shaw also cites Rodgers v. Claim Jumper Restaurant, LLC, No. 13- 20 cv-5496-YGR, 2015 WL 1886708 (N.D. Cal. Apr. 24, 2015), in which the court awarded fees at 21 an hourly rate of $525 for an attorney, based on the attorney’s 20 years of experience, as well as 22 other evidence including declarations from other ADA plaintiff’s attorneys. Id. at *4. 23 Additionally, Mr. Shaw cites Rodriguez v. Barrita, 53 F. Supp. 3d 1268 (N.D. Cal. 2014), in 24 which the court approved hourly rates of $645 for an attorney with over 45 years of experience, 25 $550 for an attorney with 22 years of experience, and $425 for an attorney who had been working 26 with plaintiff’s counsel’s firm for about 5 years. In Rodriguez, counsel’s requested rates were 27 1 either not contested by the opposing party or were supported by a declaration from another 2 disability law attorney. Id. at 1278-79. 3 As another court in this district recently observed, the Rivendell decision relied on cases 4 that concerned work that was substantially different than the work performed in the present action. 5 See Johnson v. AutoZone, Inc., No. 17-cv-02941-PJH, 2019 WL 2288111, at *6 n.4 (N.D. Cal., 6 May 29, 2019). For example, Civil Rights Education and Enforcement Ctr. v. Ashford Hospitality 7 Trust, Inc., No. 15-cv-00216-DMR, 2016 WL 1177950 (N.D. Cal., Mar. 22, 2016), was a complex 8 class action matter involving 54 hotels spread among multiple states. And, in Elder v. Nat’l 9 Conference of Bar Examiners, the court observed that the case set “new precedent” that caused the 10 California State Bar to “change a policy which impacts potentially hundreds of individuals each 11 year across California.” 2011 WL 4079623 at *4. 12 Messrs. Potter and Ballister and Ms. Grace each seek fees at an hourly rate of $650. Mr. 13 Potter avers that he has been a practicing attorney for 20 years, mostly focusing on disability law; 14 Mr. Ballister has been a practicing lawyer for 29 years, with over 10 years devoted to disability 15 rights cases; and Ms. Grace has been practicing law for over 22 years, with approximately 10 16 years devoted to disability rights cases. Dkt. No. 109-4 ¶¶ 7-9. Mr. Shaw has not cited cases 17 awarding the requested rate for Mr. Ballister’s work. And with the exception of Rivendell, courts 18 in this district have awarded fees based on a $425 hourly rate for Mr. Potter and Ms. Grace. See, 19 e.g., AutoZone, Inc., 2019 WL 2288111, at *6 (citing cases); see also, e.g., Gonzalez v. Machado, 20 No. 17-cv-02203-LB, 2019 WL 3017647 (N.D. Cal. July 10, 2019); Johnson v. Express Auto 21 Clinic, Inc., No. 18-cv-00464-KAW, 2019 WL 2996431 (N.D. Cal. July 9, 2019); Johnson v. VN 22 Alliance LLC, No. 18-cv-01372-BLF, 2019 WL 2515749 (N.D. Cal. June 18, 2019); Johnson v. 23 RK Investment Properties, Inc., No. 18-cv-01132-KAW, 2019 WL 1575206 (N.D. Cal. Mar. 18, 24 2019); Love v. Griffin, No. 18-cv-00976-JSC, 2018 WL 4471073 (N.D. Cal. Aug. 20, 2018) 25 (report and recommendation), No. 18-00976, Dkt. No. 23 (order adopting report and 26 recommendation); Arroyo v. Aldabashi, No. 16-cv-06181-JCS, 2018 WL 4961637, at *5 (N.D. 27 Cal. Oct. 15, 2018); Johnson v. Altamira Corp., No. 16-cv-05335-NC, 2017 WL 138469 (N.D. 1 Feb. 27, 2017). More recently, this Court has approved a $475 hourly rate for Mr. Potter. See 2 Johnson v. Rocklin of California LLC, No. 18-cv-06836-VKD, 2019 WL 3854308, at *11 (N.D. 3 Cal. Aug. 16, 2019) (report and recommendation); see also Case No. 18-cv-06836, Dkt. No. 27 4 (order adopting report and recommendation); Johnson v. Campbell Plaza Development Co., No. 5 5:18-cv-05878-SVK, Dkt. No. 26 (N.D. Cal. Sept. 27, 2019). 6 Within the past year, another court in this district approved rates of at least $700/hour for 7 other attorneys at different firms. See Martin v. Diva Hospitality Group, Inc., No. 16-cv-04103- 8 EDL, 2018 WL 6710705 (N.D. Cal. Dec. 7, 2018). In that case, the court approved a rate of $700 9 for an attorney with 28 years of experience as a trial lawyer, with 10 years devoted exclusively to 10 disability law; a $700 rate for an attorney who had been practicing for over 27 years, including 25 11 years of experience in disability matters; and a rate of $795 for an attorney who had been 12 practicing for 49 years, with 43 years of experience in disability law. Id. at *2. 13 As recently noted by this Court, however, compared with fees awarded to other attorneys 14 with similar experience, Mr. Shaw’s request for a $650 rate appears high. See Rocklin of 15 California LLC, 2019 WL 3854308 at *10. Another court in this district has noted that a rate over 16 $700/hour is the exception, and not the norm, for disability cases. See Chapman v. NJ Properties, 17 Inc., No. 5:16-cv-02893-EJD, 2019 WL 3718585, at *4 (N.D. Cal., Aug. 7, 2019) (declining to 18 award fees at $750/hour for an attorney with over 40 years of experience, including 25 years in 19 disability access litigation, who had previously been awarded fees at $500/hour, and awarding fees 20 at $600/hour instead to account for inflation). Indeed, for attorneys with approximately 20 or 21 more years of experience, courts in this district have generally approved rates ranging from $350 22 to $495 in disability cases. See, e.g., Castillo-Antonio v. Lam, No. 18-cv-04593-EDL, 2019 WL 23 2642469, at *7 (N.D. Cal., Apr. 10, 2019) (approving, on a motion for default judgment, a $350 24 hourly rate for an attorney with over 20 years of experience); Johnson v. Castagnola, No. 18-cv- 25 00583-SVK, 2019 WL 827640, at *2 (N.D. Cal., Feb. 21, 2019) (approving a $350 rate for an 26 attorney with 20 years of litigation experience, noting that the requested rate was unopposed by 27 defendant and in line with rates approved in the Northern District); Wilson v. Red Robin Int’l, Inc., 1 rate for an attorney with 24 years of experience in civil rights litigation, including 12 years 2 devoted to disability law and a $475 rate for an attorney with over 17 years of litigation experience 3 and more than 8 years of experience in disability law). 4 As for Mr. Shaw’s other attorneys, eight of them seek fees at a rate of $500/hour: Ms. 5 Melton (approximately 24 years practice),5 Mr. Price (approximately 8 years of practice, with 7 6 years in disability rights cases), Ms. Masanque (approximately 6 years of practice focusing on 7 disability rights cases), Ms. Carson (approximately 8 years of practice, with over 5 years in 8 disability rights cases), Ms. Allen (approximately 7 years of practice, with 2 years in disability 9 rights cases), Ms. Seabock (approximately 6 years of practice, focusing on disability rights cases), 10 Mr. Seabock approximately 8 years of practice, with about 4 years focusing on disability rights 11 cases, and Mr. Mehton (approximately 9 years of practice, focusing on disability rights cases). 12 For Mr. Price, Ms. Masanque, Ms. Carson, and Ms. Seabock, courts in this district have approved 13 rates ranging from $300/hour, see, e.g., Gonzalez, 2019 WL 3017647 at *4; AutoZone, Inc., 2019 14 WL 2288111 at *7, up to $350/hour, see, e.g., Campbell Plaza Development Co., No. 18-cv- 15 05878-SVK, Dkt. No. 26 at 10; NJ Properties, Inc., 2019 WL 3718585 at *4; Express Auto Clinic, 16 Inc., 2019 WL 2996431 at *8; Griffin, 2018 WL 4471073 at *8; Arroyo, 2018 WL 4961637 at *5. 17 Similarly, fees for Ms. Melton’s and Mr. Mehton’s work have been awarded at a $300 hourly rate. 18 See Gonzalez, 2019 WL 3017647 at *4; AutoZone, Inc., 2019 WL 2288111 at *7. The Court’s 19 research indicates that the higher $350 rate is in line with fees awarded to other attorneys with 20 comparable or greater experience. See, e.g., Che v. Lo, No. 18-cv-00402-CRB, 2019 WL 21 2579205, at *2 (N.D. Cal., June 24, 2019) (on a motion for default judgment, approving a rate of 22 $400/hour for an attorney with 10 years experience, including 6 to 8 years in disability matters); 23 Ridola, 2018 WL 2287668 at *16, Case No. 5:16-cv-02246-BLF, Dkt. No. 58-8, Declaration of 24 Irene Karbelashvili ¶¶ 3, 6 (approving a rate of $325/hour for an attorney with 12 years of 25 experience, including 6 years focused on disability access law). 26 The remaining three attorneys each seek fees at a rate of $410/hour: Mr. Valenti 27 1 (approximately 10 years of practice), Ms. Gunderson (approximately 6 years of practice, with 2 2 years in disability rights cases) and Mr. Montgomery (approximately 8 years of practice).6 Fees 3 for work performed by Ms. Gunderson and Mr. Montgomery recently have been awarded at a 4 $250 hourly rate. See Gonzalez, 2019 WL 3017647 at *4; AutoZone, Inc., 2019 WL 2288111 at 5 *7. Mr. Shaw has made no showing to the contrary. Nevertheless, in terms of years of 6 experience, these attorneys seem comparable to attorneys who have been awarded fees falling 7 within the $300-$350/hour range, except that Messrs. Valenti and Montgomery and Ms. 8 Gunderson may have less experience in disability rights matters. Taking into account prior awards 9 made to the Potter Handy/Center for Disability Access firm, as well as to other attorneys in this 10 district, and absent other evidence from Mr. Shaw, the Court will award fees for these attorneys at 11 $300/hour. 12 The present matter does not present novel or difficult issues requiring a high level of skill 13 or specialization, and Mr. Shaw acknowledges that the present matter is a relatively simple one, 14 involving straightforward application of the law. For the reasons discussed above, this Court is 15 not persuaded that the rates awarded in Rivendell are appropriate here. Nor has Mr. Shaw 16 demonstrated that rates approaching the exceptional rates awarded in Diva Hospitality are 17 warranted. While Mr. Potter’s declaration indicates that the attorneys in question have 18 considerable experience, the Court also recognizes that “[t]he market rate for legal services . . . 19 does not necessarily rise in direct relation to an attorney’s skill and experience.” NJ Properties, 20 Inc., 2019 WL 3718585 at *4. 21 This Court is mindful of the Ninth Circuit’s observation that “[t]he district court’s function 22 is to award fees that reflect economic conditions in the district; it is not to ‘hold the line’ at a 23 particular rate, or to resist a rate because it would be a ‘big step.’” Moreno v. City of Sacramento, 24 534 F.3d 1106, 1115 (9th Cir. 2008). In view of the range of rates approved for attorneys 25 practicing in this field, and in the absence of declarations from other attorneys of comparable skill, 26 experience and reputation, and further recognizing that decisions pertaining to the same attorneys 27 1 in question are particularly salient, United Steelworkers, 896 F.2d at 407, this Court will award 2 fees at the following rates: Mr. Potter ($475/hour), Mr. Ballister ($475), Ms. Grace ($475), Ms. 3 Melton ($350), Mr. Price ($350), Ms. Masanque ($350), Ms. Carson ($350), Ms. Allen ($350), 4 Ms. Seabock ($350), Mr. Seabock ($350), Mr. Mehton ($350), Mr. Valenti ($300), Ms. 5 Gunderson ($300) and Mr. Montgomery ($300). 6 B. Reasonable Hours 7 Mr. Shaw “bears the burden of establishing entitlement to an award and documenting the 8 appropriate hours expended[.]” Hensley, 461 U.S. at 437. Defendants have “a burden of rebuttal 9 that requires submission of evidence to the district court challenging the accuracy and 10 reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted 11 affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1993). “The party opposing 12 fees must specifically identify defects or deficiencies in the hours requested; conclusory and 13 unsubstantiated objections are insufficient to warrant a reduction in fees.” Rivera v. Portfolio 14 Recovery Associates, LLC, No. 13-2322 MEJ, 2013 WL 5311525, at *4 (N.D. Cal. Sept. 23, 15 2013). However, “[e]ven if the opposing party has not objected to the time billed, the district 16 court ‘may not uncritically accept a fee request,’ but is obligated to review the time billed and 17 assess whether it is reasonable in light of the work performed and the context of the case.” Id. 18 (quoting Common Cause v. Jones, 235 F. Supp. 2d 1076, 1079 (C.D. Cal. 2002)). “Where the 19 documentation of hours is inadequate, the district court may reduce the award accordingly.” 20 Hensley, 461 U.S. at 433. A district court should also exclude from the lodestar fee calculation 21 any hours that were not “reasonably expended,” such as hours that are excessive, redundant, or 22 otherwise unnecessary. See id. at 433-34; see also Chalmers, 796 F.2d at 1210 (“Those hours may 23 be reduced by the court where documentation of the hours is inadequate; if the case was 24 overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise 25 unnecessary.”). 26 1. Overstaffing 27 Defendants argue that there were too many attorneys involved in this matter and that the 1 decisions were made due to health and turnover issues with some of the attorneys assigned to 2 work on this matter. However, other than arguing that Mr. Potter generally spent too much time 3 on this matter, defendants point to no particular instances of duplicative billing. Instead, for the 4 first time at the motion hearing, defendants complained that Mr. Potter, as one of the most senior 5 attorneys in the firm, should not have billed time for drafting the complaint—a task that 6 defendants contend should have been delegated to junior attorneys. 7 Courts in this district have recognized that routine work reasonably should be delegated to 8 less senior attorneys, and that work by senior attorneys reasonably should be limited to matters 9 requiring that level of skill. See Hernandez v. Grullense, No. 12-cv-03257-WHO, 2014 WL 10 1724356, at *8 (N.D. Cal. Apr. 30, 2014). Here, the Court notes that Mr. Potter billed 0.7 hours 11 for drafting the original complaint, Dkt. No. 109-5 at 2. In view of the reduced hourly rate for 12 which Mr. Potter’s time is being compensated, and given defendants’ meager showing, under the 13 circumstances presented here the Court declines to make any further deductions related to Mr. 14 Potter’s drafting of the complaint. However, the Court will deduct time from the additional 0.7 15 hours that Mr. Potter billed for drafting the FAC. Dkt. No. 109-5 at 3. As noted above, the FAC 16 is virtually identical to the original complaint, except that one additional defendant was added. 17 See Dkt. Nos. 1 and 14. The Court sees no reason why preparation of the FAC should have taken 18 another full 0.7 hours of Mr. Potter’s time. Accordingly, the Court will deduct 0.4 hours and 19 allow fees for 0.3 hours of Mr. Potter’s time with respect to the FAC. 20 2. Clerical Tasks 21 Defendants object to a number of time entries in which attorneys billed time, primarily in 22 0.1-hour increments, to “instruct[] assistant[s]” to perform tasks, such as retrieve, file, or serve 23 documents; send documents to the client or to opposing counsel; and to call or otherwise 24 communicate with the client, opposing counsel, and others about scheduling matters. Purely 25 clerical tasks generally are not recoverable in a motion for attorneys’ fees and should instead be 26 subsumed in normal overhead costs. Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) 27 (“filing, transcript, and document organization time was clerical in nature and should have been 1 Unified Sch. Dist., No. 3:15-cv-04311 LB, 2016 WL 344558, at *9 (N.D. Cal. Jan. 28, 2016) 2 (same); Yates v. Vishal Corp., No. 11-cv-00643-JCS, 2014 WL 572528, at *5 (N.D. Cal. Feb. 4, 3 2014) (same). “When clerical tasks are billed at hourly rates, the court should reduce the hours 4 requested to account for the billing errors.” Nadarajah, 569 F.3d at 921. 5 The Court finds the delegated tasks in question are purely clerical in nature. Although Mr. 6 Shaw’s attorneys did not themselves perform those tasks, their “instruct[ions]” delegating those 7 tasks to their support staff are no less clerical in nature. Accordingly, the Court deducts time from 8 Mr. Shaw’s fees request as follows7: 9 • Mr. Potter: 1.9 hours 10 • Mr. Ballister: 0.1 hour 11 • Ms. Grace: 0.3 hour 12 • Ms. Melton: 0.5 hour 13 • Mr. Price: 0.5 hour 14 • Ms. Masanque: 0.2 hour 15 • Ms. Carson: 0.3 hour 16 • Ms. Allen: 0.2 hour 17 • Ms. Seabock: 1.0 hour 18 • Mr. Mehton: 0.3 hour 19 • Ms. Gunderson: 0.1 hour 20 • Mr. Montgomery: 3.3 hours 21 3. Block Billing 22 Block billing is discouraged where discrete and unrelated tasks are grouped together 23 because that practice can make it difficult, if not impossible, for the Court to assess the 24 reasonableness of the time spent on each task. Here, defendants point to a single time entry by 25 7 Because the Court has already deducted all of the time billed by Ms. Price, no additional 26 deductions have been made here for time she billed for “instruct[ion] [to] assistant” to do various clerical tasks. As for the remaining timekeepers, in deducting time for clerical tasks, the Court 27 only deducted 0.1 hour per time entry, even if the entry contained more than one “instruct[ion] [to] 1 Ms. Seabock and contend that she “‘block billed’ the Notice of Motion and Motion for Summary 2 Judgment.” Dkt. No. 111 at 5. Defendants presumably refer here to Ms. Seabock’s October 31, 3 2018 time entry, in which she billed 8.0 hours for the following: “drafted Plaintiff’s Notice of and 4 Motion for Summary Judgment, Plaintiff’s Memorandum of Points and Authorities and related 5 exhibits; instructed assistant to file.” Dkt. No. 109-5 at 14. As discussed above, the Court has 6 already deducted 0.1 from this entry for “instruct[ing] assistant to file” the summary judgment 7 motion. The remainder of the entry is not block billed, but simply describes the related summary 8 judgment papers Ms. Seabock says she prepared for filing. Accordingly, the Court will not further 9 deduct time from Ms. Seabock’s October 31, 2018 entry based on defendants’ contention that it is 10 block billed. See, e.g., Cruz v. Starbucks Corp., No. C-10-01868 JCS, 2013 WL 2447862 at *7 11 (N.D. Cal., June 5, 2013) (declining to reduce the requested fee award for alleged block billing 12 where the time records were adequate to allow the court to determine whether the time spent on 13 particular tasks was reasonable). 14 Nevertheless, the Court does take this time entry into account in the next section, below. 15 4. Alleged Barriers Not Properly At Issue 16 Defendants also argue that Ms. Seabock’s October 31, 2018 time entry should be reduced 17 because she “added causes of action that were not in the initial summons, therefore voiding those 18 causes of action for being associated with attorney’s fees.” Dkt. No. 111 at 5. Although this 19 argument is not the model of clarity, the Court understands defendants to mean that Mr. Shaw, as 20 noted above, sought summary judgment on a number of alleged barriers that the Court ultimately 21 concluded were not properly at issue in this litigation because they were not asserted in any 22 pleading. At the motion hearing, Mr. Shaw’s counsel contended that, at most, issues concerning 23 those alleged barriers would have implicated only a few minutes in the preparation of the 24 summary judgment motion. Defendants disagreed, noting that discovery, including defendants’ 25 depositions, had been conducted on these additional alleged barriers. 26 When a prevailing plaintiff achieves partial success, “the product of hours reasonably 27 expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” 1 nonfrivolous, and raised in good faith.” Id. In such cases, the Court has discretion to reduce the 2 fee award. Rodriguez, 53 F. Supp. 3d at 1287. In adjusting fees to account for partial success, the 3 Court follows a two-step inquiry:
4 First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiff’s successful claims. If 5 unrelated, the final fee award may not include time expended on the unsuccessful claims. If the unsuccessful and successful claims are 6 related, then the court must apply the second part of the analysis, in which the court evaluates the “significance of the overall relief 7 obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” If the plaintiff obtained “excellent results,” full 8 compensation may be appropriate, but if only “partial or limited success” was obtained, full compensation may be excessive. Such 9 decisions are within the district court’s discretion. 10 Id. at 1288 (quoting Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir.1986)). 11 Under the first step of the analysis, Mr. Shaw’s successful and unsuccessful claims 12 regarding various access barriers are related because they were all based on the same statutory 13 theories of liability. See id. (“[R]elated claims involve a common core of facts or are based on 14 related legal theories.”) (citation omitted). 15 Thus, under the second step of the analysis, the Court considers “whether the hours spent 16 in litigation were reasonably necessary to obtain the relief that was ultimately obtained.” Id. at 17 1289 (internal quotation and citation omitted). As noted above, Mr. Shaw prevailed on summary 18 judgment with respect to several barriers in the parking lot, paths of travel, dining area and 19 restroom. Dkt. No. 79. He was also awarded $4,000 in statutory damages under the Unruh Act 20 based on those barriers, although the Court found no basis for his request for an additional $4,000 21 in general “ongoing deterrence” damages. Id. Mr. Shaw did not prevail with respect to other 22 alleged barriers which no longer existed or apparently had already been remedied, or which had 23 never been asserted in any of his complaints. See, e.g., Dkt. No. 79 at 8-9. Nevertheless, “[a]ny 24 violation of the ADA necessarily constitutes a violation of the Unruh Act.” M.J. Cable, Inc., 481 25 F.3d at 731 (citing Cal. Civ. Code § 51(f)). And, the Unruh Act allows for a minimum statutory 26 damages award of $4,000 “for each occasion an individual is denied equal access to an 27 establishment covered by the Unruh Act . . ..” Ridola v. Chao, No. 16-cv-02246-BLF, 2018 WL 1 established that he encountered at least some access barriers during his one visit to the Restaurant, 2 Mr. Shaw would have obtained the same monetary relief, notwithstanding that he was not 3 successful as to all of the barriers included in his summary judgment motion. 4 The focus of defendants’ objection to the requested fees concerns billing efforts associated 5 with those barriers that the Court ultimately found were not properly at issue. The billing 6 statements submitted by Mr. Shaw are not detailed in a way that would allow the Court to identify 7 and isolate the time his attorneys worked on those unsuccessful allegations. Nevertheless, the 8 dispute over this portion of Mr. Shaw’s requested fees may be narrowed to certain events which 9 occurred relatively late in the litigation. The barriers in question were identified in Mr. Shaw’s 10 June 9, 2018 expert’s report. Dkt. No. 59-9. Although the billing statement indicates that there 11 was some subsequent discovery activity, it is not clear that all of those discovery efforts involved 12 the additional alleged barriers in question. For example, Mr. Shaw’s billing statement indicates 13 that while attorney Mr. Montgomery drafted a second set of document requests on June 11, 2018, 14 he did not review the expert’s report until June 13, 2018. Dkt. No. 109-5 at 10. Defendants 15 having presented no evidence to the contrary, the Court infers that those document requests did 16 not involve the additional barriers in question. Similarly, the submitted billing statement indicates 17 that Mr. Montgomery drafted and served Mr. Shaw’s responses to defendants’ discovery requests 18 on July 9, 2018. Id. at 11. Because discovery responses ordinarily are due 30 days after they are 19 served, the Court infers that the time spent preparing these discovery responses also did not 20 involve the additional barriers in question. 21 There remain several post-June 9, 2018 time entries relating to defendants’ depositions and 22 Mr. Shaw’s summary judgment motion. Defendants asserted at oral argument that the depositions 23 covered the additional alleged barriers, but provided no support for that assertion in their 24 opposition papers. Accordingly, the Court will not deduct any time spent in connection with 25 depositions. However, as noted above, Mr. Shaw’s summary judgment motion indisputably 26 included the additional barriers in question. As to these events, the billing statement shows that 27 1 between October 31, 2018 and January 11, 2019, Ms. Seabock billed 9 hours8 drafting Mr. Shaw’s 2 summary judgment motion and reply papers, and reviewing defendants’ opposition papers. Dkt. 3 No. 109-5 at 11, 14-15. Because Mr. Shaw could have achieved the same result in this litigation 4 without pursuing these additional barriers, the Court concludes that the time spent was not 5 reasonably necessary to obtain the relief that Mr. Shaw ultimately obtained. 6 However, the Court also considers the benefit Mr. Shaw obtained for other disabled 7 individuals. Rodriguez, 53 F. Supp. 3d at 1290. The present lawsuit brought about remediation 8 and injunctive relief that will benefit other Restaurant customers, and may also encourage other 9 businesses to ensure that their public accommodations comply with federal and state disability 10 access requirements. Id. Nevertheless, of the several barriers for which Mr. Shaw obtained relief, 11 the parties ultimately agreed that defendants need only remediate one category, i.e., the threshold 12 height for the Restaurant’s entrances. Although a plaintiff need not obtain all of the relief he 13 requested in order to achieve excellent results, the results here were not sufficiently “excellent” to 14 warrant full payment for time spent on alleged barriers that Mr. Shaw did not properly put at issue. 15 Accordingly, to account for Mr. Shaw’s partial success, the Court will apply a 5% reduction to the 16 9 hours Ms. Seabock billed on summary judgment, leaving 8.55 hours that will be credited for 17 payment. See Rodriguez, 53 F. Supp. 3d at 1290-91 (applying a 20% reduction to the overall 18 lodestar to account for the plaintiff’s partial success). 19 5. Additional Issues 20 a. Cut Off Entries 21 The text of several entries made by Mr. Montgomery between June 14, 2018 and June 25, 22 2018 appears to be have been cutoff, such that the last line(s) of each entry is partially visible, but 23 not legible. The time entered for most of these entries is minimal (generally 0.1 or 0.2 hours), and 24 the visible portion of these entries indicates that these entries primarily concerned Mr. 25
26 8 The nine-hour total does not include the 0.1 hour that has already been deducted for time Ms. Seabock billed to instruct her assistant to file the summary judgment motion. Nor will the Court 27 consider reducing time spent in connection with Mr. Shaw’s administrative motion to strike 1 Montgomery’s “instruct[ions] [to] assistant,” for which deductions have already been made, as 2 discussed above. Accordingly, the Court will not make any further reductions based on the 3 incomplete text of these entries. 4 b. Admission to Northern District of California 5 Although this issue was not raised by any party, as discussed at the motion hearing, all of 6 Mr. Shaw’s attorneys appear to be active members of the California State Bar, but several of them 7 were not admitted to the bar of this Court when this litigation initially was filed. Neither side 8 directed to the Court to any authority regarding the effect, if any, this should have on Mr. Shaw’s 9 fees request. However, in analogous situations involving out-of-state attorneys who are not 10 admitted to practice pro hac vice in a particular district, the Ninth Circuit has held that such 11 attorneys may recover fees for work as long as they (1) were eligible to be admitted pro hac vice 12 as a matter of course, or (2) did not “appear” before the Court. Winterrowd v. Am. Gen. Annuity 13 Ins. Co., 556 F.3d 815, 822-23 (9th Cir. 2009). 14 Applying Winterrowd analogously in the present matter, the Court concludes that the 15 attorneys in question would meet the first prong of the Winterrowd test, as the Court has no 16 information suggesting that these attorneys would not have been admitted to practice in this 17 district during the time they worked on this case. See, e.g., Loop AI Labs, Inc. v. Gatti, No. 15-cv- 18 00798-HSG, 2016 WL 2640472, at *2 (N.D. Cal. May 9, 2016) (permitting fees for work 19 performed by out-of-state attorneys who satisfied the first prong of the Winterrowd test). To be 20 eligible for admission and continuing membership to the bar of the Northern District of California, 21 an attorney must be an active member in good standing of the State Bar of California. Civ. L.R. 22 11-1(b). As noted above, it is the Court’s understanding that each of the attorneys in question 23 were and are members in good standing of the California State Bar, and indeed they have now 24 been admitted to the bar of this Court. Accordingly, the Court will not deduct any time billed by 25 these attorneys during a period when they were not admitted here. 26 c. Reviewing Billing Statement 27 Mr. Shaw seeks $195 for time Mr. Potter spent reviewing the firm’s bills and “remov[ing] 1 cited no authority to support the recovery of such fees, and the Court does not find it reasonable to 2 award fees for time Mr. Shaw’s counsel spent identifying fees to which they apparently agree they 3 are not entitled. Accordingly, the time spent for this task will be deducted from the fee award. 4 6. Lodestar Adjustments 5 Once the lodestar has been calculated, it may be adjusted upward or downward to account 6 for any relevant factors set out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) 7 that were not subsumed in the initial calculation of the lodestar.9 Chalmers, 796 F.2d at 1212. 8 “The Supreme Court has noted, however, that the Kerr factors are largely subsumed within the 9 initial calculation of reasonable hours expended at a reasonable hourly rate, rather than the 10 subsequent determination of whether to adjust the fee upward or downward.” Id. (citing Hensley, 11 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9.). Moreover, there is a strong presumption that the 12 lodestar figure represents a reasonable fee; and, thus a multiplier may be used to adjust the 13 lodestar amount upward or downward only in rare and exceptional cases, supported by specific 14 evidence in the record, that the lodestar amount is unreasonably low or unreasonably high. Van 15 Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (citations omitted). 16 As noted above, this matter is a relatively simple one, involving straightforward 17 application of the law, and Mr. Shaw does not request a multiplier. The Court finds no basis for 18 any adjustments to the lodestar. 19 C. Lodestar Amount 20 Multiplying the reasonable hourly rates and the hours reasonably expended, yields a 21 9 The twelve Kerr factors are: 22
(1) the time and labor required, (2) the novelty and difficulty of the 23 questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due 24 to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or 25 the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 26 ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar 27 cases. 1 lodestar amount of $37,955.00 as reflected in the following table: 2 Attorney Rate Hours Total 3 Mark Potter $475 15.9 $7,552.50 4 Raymond Ballister $475 1.0 $475.00 5 Phyl Grace $475 3.2 $1,520.00 6 Mary Melton $350 18.4 $6,440.00 7 Dennis Price $350 10.5 $3,675.00 8 Isabel Masanque $350 0.6 $210.00 9 Chris Carson $350 4.3 $1,505.00 10 Teresa Allen $350 2.1 $735.00 11 Amanda Seabock $350 12.95 $4,532.50 12 Chris Seabock $350 2.2 $770.00 13 Kushpreet Mehton $350 10.4 $3,640.00 14 Matt Valenti $300 0.6 $180.00 15 Sara Gunderson $300 0.6 $180.00 16 Elliott Montgomery $300 21.8 $6,540.00 17 TOTAL $37,955.00 18 D. Costs 19 Defendants do not object to Mr. Shaw’s request for the $400 filing fee and the $30 service 20 fee, which are supported by the record. Dkt. Nos. 1, 7. 21 Nor do defendants state any objection to $2,651.50 in fees charged by Mr. Shaw’s expert, 22 Gary Waters, as indicated in Mr. Waters’s invoice. Dkt. No. 109-7. 23 Mr. Shaw also seeks $1,036.25 in costs incurred for Michele and Randy Kelley’s 24 respective depositions. Dkt. No. 109-8. Defendants having asserted no objection, the Court 25 awards payment of $1,036.25, as supported by the submitted invoice. 26 Defendants do object to $800 in fees paid to Mr. Shaw’s investigator to conduct a pre- 27 litigation inspection, as well as an inspection pursuant to this district’s General Order No. 56. Mr. 1 Potter avers that although the investigator did not present a formal invoice, the requested $800 fee 2 || is his “going rate.” Dkt. No. 109-49 4. Defendants object to this fee due to the lack of a formal 3 || invoice, arguing that “[t]he IRS would not allow it, so neither should this Court.” Dkt. No. 111 at 4 5. However, defendants have not provided this Court with any basis to conclude that Mr. Potter 5 has been untruthful about the $800 he says was paid. 6 Accordingly, Mr. Shaw will be awarded costs in the amount of $4,917.75. 7 || I. CONCLUSION 8 Based on the foregoing, and upon the papers presented, Mr. Shaw’s motion for attorneys’ 9 fees and costs is granted in part and denied in part as follows: Mr. Shaw is awarded $37,955.00 10 in fees and $4,917.75 in costs, for a total award of $42,872.75. The Clerk shall enter judgment 11 accordingly and close this file. 12 IT IS SO ORDERED. 5 13 Dated: October 11, 2019
14 oe 15 Wnchan K. E. Neh = 16 United States Magistrate Judge = 17 18 19 20 21 22 23 24 25 26 27 28