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Feezor v. Otay Lakes Road

July 9, 2008


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz


Plaintiff Lary Feezor ("Plaintiff") has brought a motion for attorney's fees and costs against Defendant Thrifty Payless, Inc., dba Rite Aid ("Rite Aid"). For the reasons discussed below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.


On February 21, 2007, Plaintiff filed this action against defendants Otay Lakes Road, LP; Sutherland Management Co. dba McDonald's #14228; Golden Arch Limited Partnership; Thrifty Payless, Inc. dba Rite Aid #5617; WEC 98-G-3, LLC; Capitas Group, LLC dba Arby's # 7057; The Vons Companies, Inc. dba Vons #2071; Blockbuster, Inc. dba Blockbuster Video # 6682; Lahorian Capital Group, Inc. dba IHOP # 827; IHOP Corp.; IHOP Properties, Inc.; Michael M. Schreter, Trustee of the Michael M. and Barbara J. Schreter Trust dated July 21, 1989 (aka the MBS Trust, July 21, 1989) as amended and restated; and, Barbara J. Schreter, Trustee of the Michael M. and Barbara J. Schreter Trust dated July 21, 1989 (aka the MBS Trust, July, 21, 1989) as amended and restated. The Complaint alleges that Plaintiff, a paraplegic who uses a wheelchair and a mobility-equipped vehicle when traveling about in public, encountered a number of architectural barriers at the facilities located within the Eastlake Village Shopping Center located at 2230-2290 Otay Lakes Road, Chula Vista , California.

The Complaint asserts violations of the ADA, 42 U.S.C. § 12101 et seq., California's Unruh Act (Cal. Civil Code § 52), Cal. Civ. Code § 51, and California's Disabled Persons Act. By December 28, 2007, all of the defendants, except Rite Aid and WEC 98G-3 LLC, were dismissed from the action. On November 26, 2007 plaintiff accepted a Rule 68 Offer by Rite Aid. The Rule 68 Offer provided for injunctive relief, a payment of damages in the amount of $4,001.00, and reasonable attorney's fees and costs. On December 20, 2007, the Court granted judgment in favor of Plaintiff and against Rite Aid in accordance with the Rule 68 Offer.


Under 42 U.S.C. §12205, the "prevailing party" in an ADA action can recover "reasonable attorney's fees, including litigation expenses, and costs." Likewise, the prevailing plaintiff is entitled to fees and costs under California's disability access laws. See Cal. Civ. Code §§ 52(a), 54.3(a), 55. Judgment was entered in favor of Plaintiff. Therefore, Plaintiff is a "prevailing party."

The amount of the prevailing party's reasonable attorney's fees is calculated by utilizing the lodestar method. Camacho v. Bridgeport Financial, Inc., __ F.3d __, 2008 WL 1792808, *3 (9th Cir. 2008). To calculate the "lodestar," the court multiplies the number of hours the prevailing party reasonably expended on the litigation by a reasonable rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a strong presumption that the lodestar figure represents a reasonable fee. Harris v Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994).

However, courts may adjust the lodestar figure upward or downward based upon the following factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (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 the circumstances, (8) the amount involved and the 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 with the client, and (12) awards in similar cases.

"Among the subsumed factors presumably taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation are: (1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation (4) the results obtained and (5) the contingent nature of the fee agreement."

Morales, 96 F.3d at 364 n. 9.


A. Attorney's Fees

Plaintiff seeks attorney's fees in the amount of $10,591.25. The breakdown of the requested fees is as follows:

NameHoursRateTotal Lynn Hubbard, III24.95$350/hr$8,732.50 Lynn Hubbard, III (travel)4.00$175/hr$700.00 Scottlynn J. Hubbard, IV.75$225/hr$168.75 Paralegals11.00$90/hr$990.00

As detailed below, the Court will not grant the full amount requested. The Court makes reductions for, among other things, excessive time spent on certain tasks, work that should not be billed to the client, work performed by Lynn Hubbard that could have been performed by a more junior attorney, and clerical tasks performed by paralegals.

1. Lynn Hubbard's Fees

Rite Aid argues that the fees claimed by Lynn Hubbard are excessive. Rite Aid argues that the hourly rate of $350 per hour (for non-travel time) is not reasonable given that no novel or complex issues were raised by the case, the parties did not engage in discovery, and no motions (other than the instant motion for attorney's fees) were filed. Rite Aid reasons that a more junior attorney, such as Scottlynn Hubbard, could have performed the work billed by Lynn. Scottlynn billed less than an hour on this case. The Court agrees that the hourly rate of $350 is excessive given the type of work done and finds that $250 an hour is reasonable.

Rite Aid also argues that the fees for certain tasks should be divided among the nine defendants who were still in the case at the time. For example, Rite Aid claims that it should be held responsible for only 1/9 of the fees billed for a trip to San Diego for meet and confer inspections at the shopping center and for travel time and attendance at the ENE. The Court will divide the fees incurred in connection with the meet and confer inspections and the ENE.

However, only four defendants had answered at the time of the meet and confer inspections, and only three defendants attended the ENE. Therefore, the fees in question will be divided by four or three, whichever is applicable.

Rite Aid challenges specific time entries on the ground that they should not be compensable or are excessive. As detailed below, the Court agrees that a number of these time entries should be disallowed or reduced.

Date Description Time Time Reason for Reduction

Billed Allowed

1/25/07 Conflict check .30 0 Unclear whether conflict check was for Rite Aid defendants. Plaintiff's counsel has filed multiple complaints against Rite Aid.

2/20/07 Letter to client re: fee .15 0 Not a billable task agreement

2/20/07 Create client fee .25 0 Not a billable task. agreement

Date Description Time Time Reason ...

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