United States District Court, S.D. California
September 16, 2005.
GAYNOR CARLOCK, Plaintiff,
COLLINS MOTORS, INC., ET AL., Defendants.
The opinion of the court was delivered by: NAPOLEON JONES, District Judge
(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.
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.]
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
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
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).
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. ¶
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
IT IS SO ORDERED.
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