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Robinson v. Cherokee Times Square

June 11, 2009

RODGER ROBINSON, PLAINTIFF,
v.
CHEROKEE TIMES SQUARE, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Presently pending before this court is plaintiff's motion for attorneys' fees and costs, filed April 6, 2009.*fn1 Plaintiff seeks attorneys' fees and costs in the amount of $17,139.*fn2 As explained hereafter, the court will award most of the requested attorneys' fees and costs in the amount of $16,364.

BACKGROUND

Plaintiff is a disabled individual who uses a wheelchair to ambulate. He filed this action on June 25, 2007, alleging defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Cal. Civ. Code §§ 51, 54, 54.1 and 55, due to an inaccessible men's restroom at the Casa Flores Mexican Restaurant, located in a shopping center in Lodi, and owned by defendants Cherokee Times Square, LLC ("Cherokee") and Chris Gianulias. Plaintiff had sought injunctive relief and statutory damages, as well as attorneys' fees and costs.

The parties filed a stipulation of dismissal with prejudice on March 18, 2009, which specified that their settlement was subject to plaintiff's motion for attorneys' fees and costs. The present motion for fees and costs is the only matter remaining to be determined following settlement.

The record settlement for this case was $4,000 minimum statutory damages to plaintiff, together with access improvements. Plaintiff seeks $2,064 in costs plus $15,075 in attorneys' fees, for a total of $17,139. Defendants oppose the motion, requesting that it be reduced in certain respects.

DISCUSSION

I. Legal Standards

The ADA provides:

"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. The statute requires the court to determine which party prevailed and whether the requested fees and costs are reasonable.

In this case, because the parties entered into a judicially enforceable settlement agreement, plaintiff is a "prevailing party." See Barrios v. California Interscholastic Fed'n, 277 F.3d 1128, 1134 n.5 (9th Cir. 2002); Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000). The settlement agreement was entered in the record and the court retained jurisdiction over attorneys' fees, which materially altered the parties' relationship. See Farrar v. Hobby, 506 U.S. 103, 113, 113 S.Ct. 566 (1992); Richard S. v. Department of Developmental Services of State of California, 317 F.3d 1080, 1086 (9th Cir. 2003) ([P]revailing party status is not determined by the degree of success achieved."); Barrios v. California Interscholastic Fed'n, 277 F.3d 1128, 1134 n. 5 (9th Cir. 2002) (plaintiff entitled to prevailing party attorney's fees under ADA because of legally enforceable settlement agreement). Even though the recovery plaintiff obtained may have been significantly less than the relief he sought, the cited cases make clear that the legally enforceable settlement agreement renders plaintiff a "prevailing party." That he recovered only statutory minimum damages or that the injunctive relief he obtained is relatively minor is not the determinative factor. Plaintiff prevailed in this case.

This circuit uses the "lodestar" method of calculating attorneys' fees -- the court multiples a "reasonable" hourly rate by the number of hours "reasonably" expended in the litigation. Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 103 S.Ct. 1933, 1939 (1983)). This lodestar amount is presumptively "reasonable," and ordinarily constitutes the first (and last) prong of the analysis. See Morales v. City of San Rafael, 96 F.3d 359, 363 n. 9 (9th Cir. 1996). The court also, however, may conduct a second prong of the fee analysis by considering whether recovery of the lodestar amount is "reasonable" in light of other factors which may counsel in favor of adjusting the lodestar calculation. See Fischer v. SJB-P.D. Inc, 214 F.3d 1115 (9th Cir. 2000); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). The party seeking fees and costs bears the burden of supporting his request. Fischer v. S.B. P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000).

II. Expert's Site Visit

Defendants object to the entire invoice by plaintiff's expert in the amount of $1,634, claiming that Blackseth ...


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