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CARLOCK v. COLLINS MOTORS

United States District Court, S.D. California


September 16, 2005.

GAYNOR CARLOCK, Plaintiff,
v.
COLLINS MOTORS, INC., ET AL., Defendants.

The opinion of the court was delivered by: NAPOLEON JONES, District Judge

ORDER:

(1) GRANTING DEFENDANTS' MOTION FOR ATTORNEY'S FEES; and
(2) DENYING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES.
Currently before the Court are Defendants' Collins Motor Company, Richard H. Collins' Sr., Richard H. Collins, Jr., Rita A. Collins, and Kristen Collins' ("Defendants") Motion for Attorney's Fees and Costs ("Defendants' Motion") and Plaintiff Gaynor Carlock's ("Plaintiff") cross Motion for Attorney's Fees ("Plaintiff's Motion"). Pursuant to Civil Local Rule 7.1.d.1, the Court decides the Motions on the pleadings submitted and without oral argument. For the reasons set forth below, the Court GRANTS Defendants' Motion and DENIES Plaintiff's Motion.

Background Facts

  On February 20, 2004, Plaintiff filed a Complaint alleging violations of the Americans With Disabilities Act ("ADA") and related state law claims. [Doc. No. 1.] On March 28, 2005, this Court issued an order denying Plaintiff's Motion for Summary Judgment on his ADA and state law claims and granting partial summary judgment on certain factual issues. [Doc. No. 44.] The March 28, 2005 Order also required Plaintiff to show cause why his claims should not be dismissed for lack of standing and mootness. (March 28, 2005 Order at 8.)

  On May 2, 2005, this Court ordered that Plaintiff be declared a vexatious litigant and issued a pre-filing injunction against Plaintiff. [Doc. No. 70.] The Court found that Plaintiff was filing an inordinate number of ADA and related state law claims with the bad faith motive of harassing businesses in order to extract quick cash settlements. (May 2, 2005 Order at 10.)

  Finally, on May 4, 2005, this Court issued an Order dismissing Plaintiff's ADA claim for lack of standing and mootness and dismissing Plaintiff's state law claims for lack of subject matter jurisdiction. [Doc. No. 71.]

  Legal Standards

  I. Attorney's Fees and Costs Pursuant to the ADA

  The ADA provides that "the court in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs[.]" 42 U.S.C. § 12205. When the prevailing party is the defendant, attorney's fees should be awarded only if "the plaintiff's action was frivolous, unreasonable, or without foundation." Brown v. Lucky Stores, 246 F.3d 1182, 1190 (9th Cir. 2001) (internal citations omitted).

  II. Attorney's Fees and Costs Pursuant to 28 U.S.C. § 1927

  Title 28, United States Code, Section 1927 ("Section 1927") provides that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. Section 1927 does not permit sanctions for the initial filing of the complaint; rather, the sanctions only apply to subsequent filings and tactics which multiply the proceedings. Moore v. Keegan Mgmt. Co., 78 F.3d 431, 435 (9th Cir. 1996). To award sanctions under Section 1927, the court must make a finding of recklessness or bad faith. See Fink v. Gomez, 239 F.3d 989, 993 (9th Cir. 2001); see also West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th Cir. 1990).

  III. Attorney's Fees and Costs Pursuant to the Court's Inherent Power

  In addition, a federal court has the inherent power "to levy sanctions, including attorneys' fees, for willful disobedience of a court order . . . or when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Fink, 239 F.3d at 992 (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980)); see also Chambers v. NASCO, 501 U.S. 32, 44-45 (1991) (stating that as an "appropriate sanction for conduct that abuses the judicial process," "an assessment of attorney's fees is undoubtedly within the court's inherent power.").

  Sanctions under the court's inherent power are only warranted when an attorney has acted in bad faith. Id. at 993; see also Keegan, 78 F.3d at 436. Bad faith is found where an attorney "knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent." Primus Auto Fin. Servs. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997); see also Fink, 239 F.3d at 992 (bad faith includes a broad range of improper conduct, including actions are not frivolous, yet are "substantially motivated by vindictiveness, obduracy, or mala fides.").

  IV. Amount of Reasonable Attorney's Fees

  Under fee shifting statutes, courts employ the lodestar method in calculating attorneys' fees. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003). Fees are assessed by multiplying the hours reasonably expended on the litigation by a reasonable hourly rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996).

  Additionally, the court may consider other relevant factors adopted by the Ninth Circuit in Kerr v. Screen Guild Extra, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). These factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due 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 circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship; and (12) awards in similar cases.
Kerr, 526 F.2d at 70 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974)). However, many of these considerations are already factored into the lodestar calculation. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).

  In sum, "a district court has wide latitude in determining the number of hours that were reasonably expended by the prevailing lawyers, but it must provide enough explanation to allow meaningful review of the fee award." Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001).

  Discussion

  I. Plaintiff's Motion for Attorney's Fees

  Plaintiff seeks attorney's fees under the ADA, claiming that Plaintiff is the prevailing party in this action based upon the Court's March 28, 2005 Order granting summary judgment on certain factual issues. (Pl.'s Mot. at 2.) For the reasons set forth below, the Court DENIES Plaintiff's Motion.

  Plaintiff argues that the Court "determined that defendants had in fact violated the ADA prior to making modifications." (Id. at 2, 4.) Plaintiff's representation of the Court's holding is patently erroneous. In the March 28, 2005 Order, the Court made certain factual findings regarding the status of Defendants' car dealership as a public accommodation and the physical existence of certain architectural barriers. (March 28, 2005 Order at 8-10.) However, the Court specifically held that it could not determine whether the removal of barriers was "readily achievable" or whether Defendants' effectively employed alternative methods of access. (Id. at 11-12.) Thus, the Court did not make any finding establishing liability on the part of Defendants. Rather, the March 28, 2005 Order explicitly denied Plaintiff summary judgment on his ADA and related state law claims. (Id. at 13.)

  The Court finds that Plaintiff was not the prevailing party in this action and is not entitled to attorney's fees under the ADA. Accordingly, the Court DENIES Plaintiff's Motion. II. Defendants' Motion for Attorney's Fees

  Defendants seek attorney's fees in the amount of $20,452.50, both as the prevailing party under the ADA and as sanctions under Section 1927. (Defs.' Mot. at 2-4.) Based upon the particular circumstances of the present case, the Court finds it appropriate under both the Court's inherent power and Section 1927 to impose sanctions against Plaintiff in the form of reasonable attorney's fees and costs.*fn1 For the reasons set forth below, the Court GRANTS Defendants' Motion and AWARDS Defendants reasonable attorney's fees and costs in the amount of $20,863.70.

  A. Recovery of Attorney's Fees and Costs Under 28 U.S.C. § 1927 and the Court's Inherent Power

  This Court's May 2, 2005 Order ("Vexatious Litigant Order") declared Plaintiff a vexatious litigant and issued a pre-filing injunction against Plaintiff. (See generally, Vexatious Litigant Order.) In that Order, the Court specifically found that "Plaintiff's complaints when viewed in the aggregate are contrived and incredible, manifesting bad faith and the improper motive of extracting quick cash settlements" and that "Plaintiff's contrived claims were made in bad faith and for the improper purpose of harassing defendants and extracting cash settlements." (Id. at 9, 10) (emphases added). These explicit findings of bad faith, improper motive, and improper purpose clearly apply to the filing and litigation of the present action, simply the most recent in a long line of vexatious ADA cases filed by Plaintiff.

  Since the Court has already made specific findings of bad faith by Plaintiff, the Court may properly impose sanctions under both Section 1927 and the Court's inherent power. See Fink, 239 F.3d at 993. Moreover, although Section 1927 does not permit sanctions for the mere filing of a complaint, the Court may impose such sanctions under its inherent power. See Keegan, 78 F.3d at 435 ("[t]he filing of a complaint may be sanctioned pursuant to . . . a court's inherent power[.]"). Accordingly, pursuant to the Court's inherent power and Section 1927, the Court FINDS it appropriate to impose sanctions against Plaintiff in the form of reasonable attorney's fees and reimbursement of costs for Defendants' litigation of this action in its entirety.

  B. Amount of Reasonable Attorney's Fees and Costs

  In support of the requested amounts of $20,452.50 in reasonable attorney's fees and $2586.08 in costs, Defendants have submitted a declaration by counsel for Defendants, Don W. Detisch along with contemporaneous billing time sheets. [Doc. No. 77.]

  The declaration states that the billing rate for Mr. Detisch, who has thirty-five (35) years of experience, is $150 per hour, and the billing rates for the legal assistants and paralegals are between $65 to $85 per hour. (Decl. of Detisch ¶ 5.) The Court finds these billing rates to be reasonable.

  The billing time sheets for attorney's fees describe the particular tasks worked on, such as "Drafted Answer to Carlock Complaint" or "Telephone Conference with Attorney Landers." (Id., Ex. B.) The billing time sheets for costs describe the particular type of cost, such as "Facsimiles" or "Paulson Reporting — Deposition of Gaynor L. Carlock." (Id., Ex. C.) Mr. Detisch further states that all services provided were "reasonable and necessary in defense of this action." (Id. ¶ 3.)

  Mr. Detisch declares that he personally spent 95.77 hours on this litigation. (Id. ¶ 6.) However, the Court's independent review and calculation of the billing time sheets has found a total of 95.17 hours spent by Mr. Detisch.*fn2 The Court finds that billed at $150 per hour, the total fees to be awarded for Mr. Detisch's services amount to $14,275.50.

  Mr. Detisch also declares that the total number of hours spent by his office was 167.97. (Id.) Subtracting the 95.77 hours Mr. Detisch calculated for himself, this amounts to 72.2 hours spent by the legal assistants and paralegals. However, the Court's independent review and calculation of the billing time sheets has found a total of 74.2 hours spent by legal assistants or paralegals; 66.2 hours were spent by "JAM" billed at $65 per hour (totaling $4,303.00 in fees) and 8 hours were spent by "SAJ" billed at $85 per hour (totaling $680.00 in fees). The Court finds that the total fees to be awarded for legal assistant and paralegal services amount to $4,983.00.

  Mr. Detisch further declares that Defendants incurred costs in an amount of $2,586.08. (Id. ¶ 8.) The Court has reviewed Defendants' billing time sheet for costs and finds that only $1,605.20 in costs is sufficiently documented. The remaining $980.88 is attributed to "Expense Miscellaneous," a description too vague for the Court to properly award such costs. The Court finds that the total costs to be awarded amount to $1,605.20.

  Accordingly, the Court FINDS that the total amount of reasonable attorney's fees and costs to be paid by Plaintiff to Defendants as a sanction under the Court's inherent power and Section 1927 is $20,863.70.*fn3

  Conclusion and Order

  For the reasons stated above, the Court: (1) DENIES Plaintiff's Motion for Attorney's Fees and (2) GRANTS Defendants' Motion for Attorney's Fees and Costs and AWARDS Defendants reasonable attorney's fees and costs in the amount of $20,863.70.

  IT IS SO ORDERED.

20050916

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