The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES, COSTS AND OTHER EXPENSES
Pending before the Court is Plaintiff Livia Antoninetti's*fn1
"Motion for Attorneys' Fees, Costs and Other Expenses" (Doc.
364). For the reasons set forth herein, Plaintiff's motion is GRANTED
IN PART and DENIED IN PART. The Court presumes the parties'
familiarity with the facts.*fn2
Under 42 U.S.C. §12205, the "prevailing party" in an Americans with Disabilities Act ("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.
The amount of the prevailing party's reasonable attorneys' fees is calculated by utilizing the lodestar method. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (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).
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.
Plaintiff seeks a total costs and fees award of $1,123,942.29. This costs and fees request consists of the following elements:
Billed time for Amy Vandeveld 1,736.40 $620.00 $1,054,441.50 Billed time for David Ferleger 59.9 $550.00 $32,945.00 Copy costs associated with Plaintiff's -- -- $1,908.75 opposition to Defendant's cert. petition "Litigation expenses" -- -- $25,726.33 "Costs" -- -- $8,920.73
The parties do not dispute that Plaintiff is entitled to reasonable attorneys' fees and costs. Defendant Chipotle Mexican Grill, Inc. challenges the requested award both as to the number of recoverable hours and as to the reasonableness of Plaintiff's proposed hourly rate. Additionally, Defendant challenges Plaintiff's right to recover for copying costs associated with Plaintiff's opposition to Defendant's petition for certiorari. The Court addresses these arguments in turn.
To organize the analysis of Defendant's many challenges to Plaintiff's requested recoverable hours, the Court reviews the requested hours in two sections: hours billed prior to the Ninth Circuit's remand to this Court (including hours billed in opposition to Defendant's petition for certiorari) ("pre-mandate hours"); and hours billed as a result of litigation occurring in the district court after the remand ("post-mandate" hours).
The bulk of Plaintiff's attorneys' fees request consists of pre-mandate hours. This category includes all hours spent litigating this case through a bench trial before Judge Jones in 2007, briefing and arguing the case on appeal to the Ninth Circuit, and preparing an opposition to Defendant's petition for certiorari to the United States Supreme Court.
First, Defendant challenges Plaintiff's request for pre-mandate hours on the ground that Plaintiff achieved only limited success in this action, and Plaintiff cannot be considered the prevailing party with respect to every issue. Defendant essentially argues that Plaintiff has made no progress since appealing Judge Jones's initial order in 2008: Judge Jones awarded no injunctive relief, $5,000 in statutory damages for five non-litigation-related ("bona fide") visits, and no statutory damages for three "litigation-related" visits; after remand, this Court awarded the exact same in ...