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Antonia Luna v. Hoa Trung Vo Dba Save More Discount Store; Bliatout LLC; and Does 1-10 Inclusive

May 25, 2011



In this action for damages and injunctive relief, the court entered judgment in favor of plaintiff Antonia Luna ("Plaintiff") and awarded statutory damages pursuant to a stipulated order of judgment that was filed on January 4, 2011. In the instant motion, Plaintiff requests award of attorney's fees, expenses and costs pursuant to 42 U.S.C. § 12205. Defendants do not dispute the entitlement of Plaintiff to attorney's fees, costs and expenses in general but do dispute the hourly rates asserted by Plaintiff for computation of fees. Defendants also dispute the reasonability and necessity of work time claimed by Plaintiff for certain services.


The complaint in this action was filed pursuant to the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA") on December 23, 2008. The complaint alleged that Plaintiff, a quadriplegic who relies on a motorized wheelchair for mobility, encountered conditions in the parking lot of the Asian Village Shopping Center in Fresno, and in the Save More 98 Discount Store located in the shopping center, that constituted violations of accessibility standards required by the ADA. On August 21, 2009, Defendant Blaitout, LLC filed a statement of settlement conference in which they indicated that a survey had been made of the parking lot and premises in question to identify non-ADA compliant features and to identify suggested fixes. The settlement conference statement indicated that further settlement negotiations would be required to reach an agreed upon list of remedial changes.

On August 27, 2010, the parties entered into a consent decree and order wherein Defendants did not admit "liability" but entered into the Decree and Order "for the purpose of resolving this lawsuit without the need for protracted litigation and without the admission of any liability." Doc. # 24 at 2:17-19. In the Consent Decree and Order, the parties agreed that the terms of the Decree represented "full, complete and final disposition and settlement of Plaintiff's claims against Defendants for injunctive relief that have arisen out of the subject Complaint." Doc. # 25 at 2:11-13 (italics added). The Consent Decree and Order provided a description of the items of work to be accomplished and the time within which the work that would bring the subject property into compliance with the ADA would be completed. The Decree and Order specifically provided that the Decree "does not resolve Plaintiff's claims for damages, attorney fees, litigation expenses and costs. . . ." Doc. # 24 at 5:14-15.

On October 8, 2010, Plaintiff filed a motion for summary judgment as to all claims. Defendant Blaitout filed a response on October 28, 2010. The response was a three-page document that was essentially a statement of non-opposition. Defendant Hoa Trung Vo submitted a very similar response the following day. Plaintiff filed a reply brief on November 2010. On November 17, 2010, the court denied Plaintiff's motion for summary judgment without prejudice. The primary reason for the court's denial was that Plaintiff's motion for summary judgment failed to set forth each of the facts relied upon in support of the motion in "a statement of undisputed facts" in violation of Local Rule 260(a). The court also noted that although the motion was dismissed without prejudice, the fact that there appeared to be no factual or legal dispute indicated to the court that resolution of the action should be achievable by the more efficient and less expensive expedient of stipulated judgment. The court also opined that, to the extent Defendants had asked the court to impose damages less than the statutory amount, the court could find no legal basis for a downward departure from the statutory amount of $4,000.00 per violation.

The parties filed a stipulation and proposed order of judgment on January 3, 2011. The stipulated order of judgment was filed the following day. The instant motion for attorney fees was filed on April 4, 2011. Defendant Blaitout, LLC filed objections to Plaintiff's motion for attorney's fees on April 18, 2011, and Plaintiff filed a reply on April 26, 2011. On April 26, 2011, Defendant Vo filed a document that the court construes to be a notice of non-opposition to Defendant Blaitout's opposition to Plaintiff's motion for attorney's fees. Plaintiff filed a motion to strike Defendant Vo's pleading on April 27, 2011. The motion for attorney's fees was taken under submission as of May 9, 2011.


Pursuant to 42 U.S.C. § 12205, a prevailing party, other than the United States, is entitled to "a reasonable attorney's fee, including litigation expenses and costs." As noted above, neither party disputes that Plaintiff is a "prevailing party" within the meaning of section 12205. An award of reasonable attorney's fees is determined through the hybrid lodestar multiplier approach. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000); McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1173 (9th Cir. 1999); cf. Ketchum v. Moses, 24 Cal.4th 1122, 1133-36 (2001) (discussing the lodestar approach in California). The Ninth Circuit has explained the hybrid lodestar approach as follows:

The lodestar/multiplier approach has two parts. First, a court determines the "lodestar" amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See D'Emanuelle [v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1383 (9th Cir. 1990)]; Hensley [v. Eckerhart, 461 U.S. 424,] 461 (1983). The party seeking an award of fees must submit evidence supporting the hours worked and the rates claimed. See Hensley, 461 U.S. at 433. A district court should exclude from the lodestar amount hours that are not reasonably expended because they are "excessive, redundant, or otherwise unnecessary." Id. at 434. Second, a court may adjust the lodestar upward or downward using a "multiplier" based on factors not subsumed in the initial calculation of the lodestar. See Blum v. Stenson, 465 U.S. 886, 898-901 (1984) (reversing upward multiplier based on factors subsumed in the lodestar determination); Hensley, 461 U.S. at 434 n.9 (noting that courts may look at "results obtained" and other factors but should consider that many of these factors are subsumed in the lodestar calculation). The lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in "'rare' and 'exceptional' cases, supported by both 'specific evidence' on the record and detailed findings by the lower courts" that the lodestar amount is unreasonably low or unreasonably high. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986) (quoting Blum, 465 U.S. at 898-901); Blum, 465 U.S. at 897; D'Emanuele, 904 F.2d at 1384, 1386; Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir. 1989).

Van Gerwen, 214 F.3d at 1045; cf. Ketchum, 24 Cal.4th at 1132-39 (discussing lodestar and multipliers in California).

The fee applicant "has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Blum, 465 U.S. at 896 n.11; Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005); Schwarz v. Secretary of Health and Human Servs., 73 F.3d 895, 908 (9th Cir. 1995). The Ninth Circuit has elaborated that:

Once the number of hours is set, "the district court must determine a reasonable hourly rate considering the experience, skill, and reputation of the attorney requesting fees." [Chalmers v. City of Los Angeles, 796 F.2d 796 F.2d1205, 1210.] This determination "is not made by reference to rates actually charged by the prevailing party." Id. The court should use the prevailing market rate in the community for similar services of lawyers "of reasonably comparable skill, experience, and reputation." Id. at 1210-11. Either current or historical rates prevailing rates may be used. Missouri v. Jenkins, 491 U.S. 271 (1984). The use of current rates may be necessary to adjust for inflation if the fee amount would otherwise be unreasonable; the district court must look to the "totality of the circumstances and the relevant factors, including delay in payment." [Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987).] D'Emanuelle v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1384 (9th Cir. 1990); cf. Ketchum, 24 Cal.4th at 1139 ("Indeed, the 'reasonable hourly rate [used to calculate the lodestar] is the product of a multiplicity of factors . . . the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case.'"). The "relevant legal community" in the lodestar calculation is generally the forum in which the district court sits.*fn1 Mendenhall v. NTSB, 213 F.3d 464, 471 (9th Cir. 2000); Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997); Schwarz, 73 F.3d at 906; Deukmejian, 987 F.2d at 1405; Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991); cf. Childrens Hospital and Medical Center v. Belshe, 97 Cal. App. 4th 740, 782-783 (2002) (upholding rate in a case tried in San Francisco after trial court reviewed rates of attorneys in the San Francisco Bay area); A & S Air Conditioning v. John J. Moore Co., 184 Cal.App.2d 617, 621 (1960) ("The determination of reasonable attorneys' fees is controlled by the amounts customarily charged in the locale of the action, here Alameda County.").


Plaintiff is represented by attorneys from the Law Offices of Paul L. Rein, located in Oakland, California. Representation involved a total of five personnel; three attorneys and two paralegals, who billed a total of 351.4 hours at a total cost of $138,761 in attorney's fees and an additional $19,284 in litigation expenses and costs. Defendants dispute the hourly rate billed by the three attorneys from the Rein law firm. Defendants also contend that two major activities for which Plaintiff's attorneys submitted claims -- the motion for summary judgment and the deposition of Defendant Hoa Trung Vo and Bobby T. Vang, a representative of Blaitout, LLC -- were unnecessary and therefore subject to exclusion. Defendant Blaitout also contends that certain billed costs are attributable to Defendant Vo and should be apportioned accordingly. Finally, Defendants seek a discount as to the amount billed for preparation of Plaintiff's motion for attorney's fees. The court will consider each of Defendants' objections in turn.

I. Billing Rates

Plaintiff requests that the legal staff representing her be compensated for time spent at the following hourly rates:

(1) Paul L. Rein, lead attorney, $495.00

(2) Celia McGuinness, senior associate $395.00

(3) Catherine Cabalo, associate $330.00

(4) Aaron Clefton, senior paralegal $165.00

(5) Katherine Castro, paralegal $100.00

A. Paul L. Rein

Paul L. Rein ("Rein") is the lead attorney in this action. He has more than 40 years of experience as an attorney and has specialized in disability-related litigation. Plaintiff submits a number of case examples to substantiate Rein's assertion that $495 per hour has been held a reasonable rate by reviewing courts in fairly recent disability rights cases. It is significant that each of the case examples listed come from courts in the Northern District. The court has also reviewed the declarations submitted by Mr. Rein from attorneys Sid Wolinski, John Burris and Christopher Welan. With the exception of Mr. Welan, all of the declarations of attorneys practicing in the area of disability law attest to billing rates that are prevalent in the San Francisco bay area or in similar major metropolitan areas. Mr. Welan's declaration attests to rates he has billed in the Sacramento area and in Contra Costa County.

As noted above, the relevant forum for purposes of compensation is the forum in which the district court sits; in this case the Eastern District of California and specifically the southern division of that District. Mendenhall, 213 F.3d at 471. As this court has previously held, case comparisons and evidentiary support citing prevailing hourly rates in the Northern District, Central District, Southern District and anywhere else outside the Eastern District -Fresno Division is irrelevant to the determination of prevailing rates. See Beauford v. E.W.H. Group, Inc., 2009 WL 3162249 (E.D. Cal. 2009). As noted, Plaintiff has provided a number of affidavits and case examples that support Rein's request for an hourly rate of $495 per hour, but none of the cases or declarations provide any evidence of prevailing rated in the forum covered by the Fresno Division of the Eastern District. Plaintiff asserts, without authority, that he would be able to bill $495 per hour in the Fresno community as well.

Defendants cite a number of cases, most from this court, that establish maximum rates for very experienced attorneys practicing in the Fresno area are in the neighborhood of $300 to $350 per hour. The billing range urged by Defendants corresponds to what this court has been able to determine in its own research. In Jones v. McGill, 2009 WL 1862457 (E.D. Cal. 2009), a fully contested civil rights case, the attorney for the prevailing party requested attorney fees at the rate of $425 per hour. As in this case, the requesting attorney provided affidavits concerning prevailing rates in the San Francisco Bay Area, but failed to provide any proof of prevailing rates in the Fresno area. Id. at *2. After consideration of the information available the court found that $350 per hour was the prevailing rate charged by attorneys with 20 years of experience and established reputations within the Fresno Area. Id. at *3. In Beauford v. E.W.H. Group, Inc., 2009 WL3162249 (E.D. Cal. 2009)*fn2 , this court addressed fees requested by the plaintiff's attorney who successfully moved for remand after the class action case was improperly removed from state court. The prevailing attorney requested an hourly rate of $425 per hour which he supported by case examples both from within and without the Fresno practice area. Id. at *4. This court held all case examples from outside the Fresno practice area were irrelevant to the determination of prevailing hourly rates and found that the evidence submitted supported an hourly rate of $350 per hour. Id. at *5.

The most recent case from this court giving extensive consideration to the issue of prevailing rates for purposes of computing attorney's fees is Jadwin v. County of Kern, 2011 WL 240695 (E.D. Cal. 2011). In Jadwin, the court considered requests for fees at the rates of $660 per hour for a consulting attorney with 30 years of experience, $450 per hour for co-counsel with 14 years of experience and $400 per hour for a lead counsel with relatively little experience. As with other cases noted, the court rejected evidence pertaining to compensation rates outside the Fresno area and, in addition, rejected the requesting attorney's arguments for application of out-of-town rates. Id. at *43 - *46. After making a fairly extensive review of recent cases from this district, the court reduced that hourly rates requested to $380 per hour for the consulting attorney, $350 per hour for co-counsel, and $275 per hour for lead counsel. Id. at *51.

Although Plaintiff contends that Defendants have failed to show that the rates requested by Plaintiff's attorneys are inappropriate, the court finds that Plaintiff has failed to meet her burden to provide evidence in the form of declarations or case authority to show that the rates requested are prevailing rates for the Fresno area. ...

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