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Rodriguez v. Barrita, Inc.

United States District Court, N.D. California, San Francisco Division

August 18, 2014

ARMANDO RODRIGUEZ, Plaintiff,
v.
BARRITA, INC., dba LA VICTORIA TAQUERIA; NICANDRO BARRITA; ENS ASSOCIATES INVESTMENTS, LLC; MASOUD SHAHIDI; NICANDRO BARRITA; and DOES 1 through 10, inclusive, Defendants.

ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION

RICHARD SEEBORG, District Judge.

Plaintiff Armando Rodriguez, invoking Civil Local Rule 7-9, seeks leave to file a motion for reconsideration of the prior order awarding attorney fees, litigation expenses, and costs. According to plaintiff, the prior order failed to consider material facts and dispositive legal arguments presented in his fee motion. See Civ. L.R. 7-9(b)(3). In particular, he argues the court failed to address California Code of Civil Procedure § 1021.5, which plaintiff claims "precludes [the court] from reducing plaintiff's attorney fees for limited success based on the number of barriers plaintiff remediated." (Application for Leave to File Motion for Reconsideration, ECF No. 297, 2:20-21).

As an initial matter, plaintiff's application is procedurally improper. Local Rule 7-9 applies only "[b]efore the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case." See Civ. L.R. 7-9(a). Judgment was entered some six months ago. (ECF No. 257). Nor would Federal Rule of Civil Procedure 60(b), which plaintiff does not invoke, afford the relief he seeks. See Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982) ("Legal error does not by itself warrant the application of Rule 60(b).").

Even if plaintiff's request were procedurally proper, substantive relief is not warranted. Indeed, the motion is premised on an incorrect reading of the prior order. The court did not, as plaintiff suggests, reduce counsel's fees as a result of defendants remediating certain barriers before trial. As made clear in the order, the reduction in fees flowed from plaintiff's lack of success in litigating the stairway barriers and the April 2013 barriers:

Accordingly, plaintiff achieved only partial success in this litigation. Although he obtained injunctive relief pertaining to three barriers and won $12, 000 in damages under state law, he failed to obtain any relief pertaining to the alleged stairway safety barriers or the April 2013 barriers.

Rodriguez v. Barrita, Inc., 2014 WL 2967925 at *10 (N.D. Cal. July 1, 2014). Plaintiff's lack of success is attributable to his failed attempt to recover for the stairway safety barriers and the April 2013 barriers, not to his inability to remediate barriers mooted by defendants' pretrial actions. Indeed, the prior order recognized that even remediated barriers, while moot for purposes of plaintiff's ADA claim, were actionable at trial for purposes of damages under state law.

Section 1021.5, a California fee-shifting statute, does not alter the calculus of the prior order.[1] "[U]nder state law as well as federal law, a reduced fee award is appropriate when a claimant achieves only limited success." Sokolow v. Cnty. of San Mateo, 213 Cal.App.3d 231, 249 (1989). Although plaintiff is entitled to fees under § 1021.5, it would be unjust to award him the full lodestar amount. To be sure, "fees recoverable under section 1021.5 ordinarily include compensation for all hours reasonably spent." See Serrano v. Unruh, 32 Cal.3d 621, 624 (1982). Here, however, the lodestar was calculated without regard to plaintiff's limited success.[2] See 2014 WL 2967925 at *12 n.19. Accordingly, the unadorned lodestar did not reflect whether counsel's hours were "reasonably spent" in light of plaintiff's limited success. See Serrano, 32 Cal.3d at 624. The final fee award, by contrast, took into account plaintiff's limited success and the public benefit secured by his victory. See 2014 WL 2967925 at *12. The award therefore includes all fees to which plaintiff is entitled under federal and state law.

For the foregoing reasons, plaintiff's request for leave to file a motion for reconsideration is DENIED.

IT IS SO ORDERED.


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