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Davis v. Sundance Apartments


August 5, 2008


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on plaintiffs' motion for attorneys' fees and costs pursuant to an offer of judgment plaintiffs accepted from defendants.*fn1 Fed. R. Civ. P. 68.*fn2 By this motion, plaintiffs' counsel seeks $55,580.00 in attorneys' fees and $1,105.00 in costs incurred to engage the services of a private investigator. Defendants concede that the offer of judgment entitles plaintiffs to an award of fees and costs, however, they challenge the amounts requested as unreasonable and excessive.

For the reasons set forth below, the court awards attorneys' fees in the amount of $26,922.50 and costs in the amount of $1,105.00. The instant case involved the prosecution of a straightforward housing discrimination claim; there were no court appearances and minimal discovery, and the action was pending for only 81/2 months; ultimately, it was settled for monetary compensation in the aggregate amount of $45,000.00 for the four plaintiffs. Under these circumstances, the reduced award is warranted.


In this action, plaintiffs sought relief from defendants for alleged discrimination against families with children in the operation of the Sundance Apartments. Plaintiffs alleged violations of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. and other related state laws, including the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12955 et seq., and the California Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq.*fn3

On May 9, 2008, defendants made plaintiffs an offer of judgment pursuant to Rule 68.*fn4 (Notice of Offer of Judgment and Acceptance, filed May 28, 2008.) Therein, defendants offered to pay damages in the aggregate of $45,000.00 to plaintiffs, "plus legally recoverable court costs accrued to [May 9, 2008] and reasonable attorneys' fees incurred to [the same date] where recoverable as costs of suit." (Id.) Plaintiffs accepted the offer, and judgment was entered in favor of plaintiffs on May 30, 2008.

Plaintiffs now move for an award of attorneys' fees and costs.


The Fair Housing Act, FEHA and the Unruh Civil Rights Act each provide a statutory basis for an award of attorneys' fees and costs in this case. See 42 U.S.C. § 3613(c)(2) (authorizing the court to award "the prevailing party, other than the United States, a reasonable attorney's fee and costs"); Cal. Gov't Code § 12965(b) (authorizing the court to award to "the prevailing party reasonable attorney fees and costs except where such action is filed by a public agency [or official]"); Cal. Civ. Code § 52 (authorizing the court to award to the prevailing party any reasonable "attorney's fees as may be determined by the court"). Here, it is undisputed that plaintiffs were the prevailing parties in this action. Pursuant to the offer of judgment, defendants paid plaintiffs $45,000.00 in damages and agreed to pay reasonable costs and attorneys' fees in an amount determined by the court.

The United States Supreme Court has held that the standards used for the Civil Rights Attorney's Fee Awards Act, 42 U.S.C. § 1988, are generally applicable in all cases in which Congress has authorized an award of attorneys' fees for a prevailing party. Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983). The Fair Housing Act and related state laws are no exception to this rule.

A prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley, 461 U.S. at 429 (internal quotations omitted). District courts are given discretion in calculating the amount of attorneys' fees. Id. at 437. However, the district court must make clear its reasons for a certain fee award, especially "when an adjustment is requested on the basis of either the exceptional or limited nature of relief obtained by the plaintiff." Id.

The party seeking fees bears the burden of documenting and substantiating fees, and those fees must be reasonable and necessary to the litigation. Id. at 434. In determining the award, courts typically use the "lodestar" method to calculate attorneys' fees. Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). Under this method, the court multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley, 461 U.S. at 434 (court may credit party with fewer hours if the time claimed is "excessive, redundant, or otherwise unnecessary"). There is a strong presumption that the lodestar amount is reasonable, though the court may adjust the lodestar figure if various factors overcome that presumption of reasonableness. Fischer v. SJB-P.D, Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The following twelve factors are generally used to adjust a fee award:

(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.

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); E.D. Cal. L.R. 54-293.


A. Reasonable Hourly Rate

Generally, a reasonable hourly rate is set based on the prevailing market rates in the legal community of the forum district. Blum v. Stenson, 465 U.S. 866, 895 (1984); Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1993). The fee applicant bears the burden of producing evidence that the requested rate is commensurate with the rates in the community for similar services by attorneys of "reasonably comparable skill, experience and reputation." Blum, 465 U.S. at 895 n. 11; Trevino v. Gates, 99 F.3d 911, 924-25 (9th Cir. 1996). Thus, the following Kerr factors are particularly relevant: (1) the novelty and difficulty of the questions involved; (2) the skill requisite to perform the legal service properly; (3) the customary fee; (4) the experience, reputation and the ability of the attorneys; and (5) awards in similar cases.

Here, plaintiffs' counsel, Stuart E. Fagan, a sole practitioner from San Diego, California requests an hourly rate of $350.00 per hour. In support of his request, Mr. Fagan submits the declaration of Christopher Brancart, a partner in the law of firm of Brancart & Brancart in Pescadero and Loma Mar, California, which, like Mr. Fagan, specializes in fair housing litigation.*fn5 In full, Mr. Brancart attests: Mr. Fagan's "hourly rate of $350 is reasonable in the housing discrimination arena and is comparable to rates that are charged by individuals in the major metropolitan markets of California, including in Sacramento County." (Docket #17 at ¶ 4.) Mr. Brancart provides no supporting documentation for his opinion nor does he otherwise describe the factual basis for his opinion.

"Rates outside the forum [district] may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to properly handle the case." Baron v. Dalton, 132 F.2d 496, 502 (9th Cir. 1997).

Here, Mr. Fagan, as non-local counsel, must demonstrate that either (1) his fees are akin to fees charged by local practitioners of similar experience for similar work or (2) local counsel was unavailable such that he should be awarded fees which are commensurate with rates in his local community of San Diego. Mr. Fagan has wholly failed to make this latter showing; he makes no argument, let alone provide any supporting evidence, to demonstrate that local counsel was unavailable to take this case. Thus, to be entitled to an award of $350.00 an hour, Mr. Fagan must demonstrate his fees are akin to those awarded local Sacramento practitioners. Mr. Brancart's conclusory statement in support of Mr. Fagan's fees is not sufficient. He offers no opinion about the prevailing market rate for the Eastern District of California for attorneys of Mr. Fagan's experience, skill and reputation.

To the contrary, defendants proffer the declaration of Michael Bishop, a Sacramento attorney with substantial experience in discrimination cases and knowledge of the prevailing hourly rates in Sacramento. Mr. Bishop, unlike Mr. Brancart, also reviewed key pleadings and documents in this case. He opines that the prevailing hourly rate for this type of case, which was not factually or legally complex, in this community is between $250.00 and $275.00. Based on recent awards of attorneys' fees in related ADA-discrimination cases, Mr. Bishop suggests an hourly rate of $250.00. (Docket #21);(Opp'n, filed July 22, 2008, at 6:1:11 [citing Eastern District cases awarding $250.00 as the hourly rate for attorneys with similar skill to Mr. Fagan].)

Only in plaintiffs' reply does Mr. Fagan attempt to substantiate a claim that $350.00 per hour is the prevailing rate in this community. The court properly does not consider this evidence as it was raised for the first time only in plaintiffs' reply. See Hillblom v. County of Fresno, 539 F. Supp. 2d 1192, 1206 (E.D. Cal. 2008) ("A moving party's attempt to introduce new facts or different legal arguments in reply papers is improper.") However, the court notes that even if it were to consider the evidence, it does not establish the propriety of counsel's requested rate. Mr. Fagan submits evidence of various fee requests in this district (primarily from the Fresno district) wherein attorneys requested hourly rates akin to Mr. Fagan's rate or in excess of his rate. Significantly, Mr. Fagan does not provide any decisions of this court which support an award of $350.00 per hour as the applicable prevailing rate for this type of case.

Thus, after consideration of Mr. Fagan's eighteen years of experience, the last ten of which have been devoted exclusively to fair housing discrimination claims, and similar cases decided in this district, the court finds that $275.00 per hour is a reasonable hourly rate in this case. The court thus calculates the lodestar amount based on this hourly rate.

B. Reasonableness of Hours Billed

The court next determines the number of hours reasonably expended on the litigation.*fn6 The party seeking fees must document and support the number of hours spent on the case. Hensley, 461 U.S. at 434. The opposing party may rebut by submitting evidence to challenge the accuracy or reasonableness of the hours billed. Id. Here, plaintiffs seek to recover attorneys' fees of $55,580.00, representing a total of 158.8 hours expended on this litigation. Plaintiffs' counsel attests that up to the time of defendants' tendering of the Rule 68 offer, he expended 134.1 hours of time handling this case. (Docket #18 at ¶ 16.) Since that time, counsel states he spent 24.7 hours of time as follows: (1) attempting to find out why defendants had not filed the Rule 68 offer and acceptance (.5 hours); (2) preparing the motion for attorneys' fees (12 hours); (3) preparing the bill of costs (.2 hours); and (4) preparing the reply and expected attendance at any hearing on the fees motion (12 hours). (Id.; Mem. of P.&A., filed June 26, 2007, at 12:17--18.)

Per the offer of judgment in this case, plaintiffs agreed to seek fees and costs only through the date of the offer of judgment. (Docket # 12.) Thus, the court considers the reasonableness of only those hours (134.1), and does not award any fees or costs for work performed after the Rule 68 offer (which includes the time spent in preparing the instant motion).

Plaintiffs' counsel submits a detailed invoice of the hours worked on this case, as well as a declaration explaining the necessity of the tasks performed. (Docket #18.) Defendants make certain specific challenges to the hours claimed, which the court discusses in turn below.

1. The Complaint and Written Discovery

Defendants challenge the time plaintiffs' counsel spent preparing the complaint, special interrogatories and requests for production of documents, arguing the hours claimed are excessive since these documents are virtually identical to those previously filed by Mr. Fagan in a similar action pending in this district. (See Robidoux, et al. v. Wacker Family Trust, et al., Civ. No. 06-2334 LKK/DAD.) In total, plaintiffs' counsel claims 15.4 hours for this work. While the court agrees with defendants that the documents prepared for this case are essentially the same as those in the Robidoux matter, it cannot find that the time claimed by counsel for the work in this case is unreasonable. There are four separate plaintiffs in this action and four defendants, and counsel had to and did tailor the pleadings and discovery to the facts of this case. Moreover, as this court has previously recognized, it not sufficient to demonstrate unreasonableness that pleadings appear "boilerplate." See Wilson v. Haria and Gogri Corp., 2007 WL 1795737, *2 (E.D. Cal. June 20, 2007) (emphasizing that "uniform instances of misconduct [may well] justify uniform pleadings") (internal quotations and citations omitted). Both this case and Robidoux involve similar housing discrimination claims, and thus, one would expect commonality in the pleadings and discovery. Therefore, the court finds plaintiffs' counsel's hours expended on this work reasonable.

2. Pre-Litigation Administrative Proceedings

Defendants object to an award of fees for time plaintiffs' counsel spent assisting plaintiffs in preparing their Department of Fair Housing and Employment Act ("DFEH") complaint and prosecuting the action in the state administrative system. Such administrative proceedings are not a prerequisite to suit under the Fair Housing Act or state law, and thus the court will not award fees for this work, totaling 36.2 hours.*fn7 See Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 522 (S.D. N.Y. 1994) (disallowing fees for time spent in administrative process under the Fair Housing Act since such proceedings are "discretionary" under that statute); Wood v. Vista Manor Nursing Center, 2006 WL 2850045, *5 (N.D. Cal. 2006) (recognizing that a court may hear a plaintiff's FEHA fair housing discrimination claim regardless of whether the plaintiff has exhausted his state administrative remedies).

3. Alleged Solicitation of Additional Clients

Defendants baldly assert that plaintiffs' counsel has charged for time he spent soliciting additional clients. Defendants contend that counsel's time entries describing conversations with "potential witness[es]," totaling 12.1 hours, were actually hours spent soliciting new clients not interviewing witnesses relevant to this case. However, defendants offer no evidence to support their assertion. In a reply declaration, plaintiffs' counsel submits a detailed summary of his contacts with these potential witnesses at the Sundance Apartments. The summary demonstrates the relevance of these contacts for purposes of counsel's prosecution of this case on plaintiffs' behalf, and the court will award fees for these hours.

4. Alleged Fees Charged for Clerical Time

Defendants challenge plaintiffs' counsel's overall hours claimed, asserting that as a sole practitioner, without support staff, he "must have" charged for clerical work. Because such clerical work is not reflected in the invoice submitted by counsel, defendants contend the court should discount the allowable time by 5 percent. Defendants' objection is without merit. Plaintiffs' counsel has expressly stated that he did not "bil[l] for clerical time." (Reply, filed July 31, 2008, at 4.) Counsel is an officer of the court, and the court accepts his representation, particularly considering that defendants have offered nothing to suggest the contrary is true. Therefore, the court does not make a general deduction of counsel's hours for clerical work.

5. Travel Time

Defendants maintain that because plaintiffs' counsel has not demonstrated the unavailability of local counsel, his travel time is not compensable. Defendants are incorrect; such a showing is not required. It is clear that "[r]easonable attorney's fees include reasonable travel time at the full hourly rate." U.S. v. City and County of San Francisco, 748 F. Supp. 1416, 1422 (N.D. Cal. 1990). Plaintiffs' counsel's limited travel time in this case (approximately 6 hours) was essential to the case, and thus, reasonable.

C. Costs

Plaintiffs seek recovery of costs in the amount of $1,105.00, representing their counsel's costs in hiring a private investigator to interview tenants at the Sundance Apartments. Plaintiffs' counsel attests that such costs were necessarily incurred in prosecution of this case in order to ascertain facts supporting plaintiffs' discrimination claims. (Docket #18.) Out-of-pocket expenses may be awarded as part of a fee award when such expenses are of the kind counsel would normally charge fee-paying clients, and the expenses are substantiated and reasonable in amount. Fair Housing Council of San Diego v. Penasquitos Casablanca Owner's Ass'n, 523 F. Supp. 2d 1164, 1172 (S.D. Cal. 2007) (citing Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005)). Fees of private investigators are routinely charged to fee-paying clients, and plaintiffs' counsel has substantiated the charges, which are reasonable under the circumstances of this case. The Sundance Apartments have approximately 179 units, and the private investigator provided counsel with a written report of his investigation which counsel thereafter used to contact tenants to develop evidence supportive of plaintiffs' claims herein. (Docket #18 at ¶ 9.) The court thus awards this cost to plaintiffs.


Accordingly, based on the foregoing, plaintiffs' motion for attorneys' fees and costs is GRANTED as follows: plaintiffs are awarded $26,922.50 in attorneys' fees, representing 97.9 hours*fn8 at $275.00 per hour; plaintiffs are also awarded $1,105.00 in costs. The total award is $28,027.50. Defendants shall pay said amount to plaintiffs' counsel within 30 days of the date of this order.


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