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Seldon v. 7-Eleven Inc.

United States District Court, N.D. California

July 5, 2016

7-ELEVEN INC., et al., Defendants.


          PHYLLIS J. HAMILTON United States District Judge.

         Before the court is the motion of plaintiff Christopher Seldon for attorney’s fees and costs. Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion in part and DENIES it in part.


         Plaintiff filed this disability access case on April 9, 2014, asserting violations at a 7-Eleven store located at 2350 Harrison Street in Oakland, California. Named as defendants were 7-Eleven Inc.; Dhingra, Inc. and Parminder Dhingra (store franchisees); and the Richard G. Burge Family Trust, owner of the property where the store is located. Plaintiff claims he encountered the denials of access on eight occasions when he visited the store in November and December 2013, and in particular, that on several of those occasions, a vehicle without a disabled placard was parked in the disabled parking spot.

         A site visit was conducted on July 17, 2014. Plaintiff's access consultant prepared a report, which was provided to defendants in September 2014. On December 22, 2014, plaintiff received defendants' Rule 68 Offer of Compromise, in which defendants offered injunctive relief in the form of remediating the access barriers (which defendants claim had already been completed), but with (according to plaintiff) no agreement as to "future maintenance, " and also offered $8, 001 in damages, with fees and costs to be negotiated or set by the court.

         In March 2015, the parties stipulated to the filing of a first amended complaint ("FAC"). The parties also engaged in discovery during this period. On April 15, 2015, plaintiff demanded $16, 000 in damages, plus $35, 510 in fees and $7, 212 in costs incurred as of April 10, 2015. In an effort to settle the case, plaintiff offered to take 10% less in fees, for a total of $31, 959, which when added to the $7, 212 in litigation expenses, would have resulted in fees and costs in the amount of $39, 171.

         As of October 2015, defendants were still offering $8, 001 in damages, per their Rule 68 offer, and plaintiff was still demanding $16, 000. On October 21, 2015, defendants’ counsel Michael S. Orr asked Cat Cabalo, counsel for plaintiff, to advise as to "the fees and costs you would anticipate asking the court for if we resolved damages at this point in the case so that I can fully advise my client." The following day, Ms. Cabalo responded that "[t]he parties are so far apart on these numbers [referring to damages] that we will not make a demand for attorney fees, litigation expenses, and costs at this time, " adding that as of October 21, 2015, "our total fees/expenses/costs were $55, 778."

         On October 30, 2015, Mr. Orr offered on behalf of defendants to settle the case for payment of $12, 000 to plaintiff, "with any attorney's fees and costs being determined by motion to the court if we cannot subsequently reach agreement of such fees and costs." On October 30, 2015, Mr. Orr confirmed in an email that "we have reached a tentative settlement in the above case for the payment of $12, 000 to Mr. Seldon and your office pursuing attorney's fees and costs by motion to the court." Following this, the parties continued finalizing the settlement agreement and consent decree.

         On January 12, 2016, defendants’ counsel sent Ms. Cabalo an email saying that 7-Eleven had asked him to "obtain your attorney's fees to see if we can resolve all issues." Ms. Cabalo responded with a "summary of our fees, litigation expenses, and costs to date" (which apparently did not include a total amount).

         On January 27, 2016, Ms. Cabalo sent an email asking Mr. Orr to "let me know if you're close to giving us a number on attorney fees." On January 28, 2016, Mr. Orr responded, "We will need to speak directly about attorney's fees." On January 29, 2016, Ms. Cabalo sent final versions of the settlement documents, adding, "Let's touch base re: attorney fees soon. It would be nice to wrap up this entire case, if possible, and avoid fees on fees." On February 1, 2016, Mr. Orr emailed Ms. Cabalo "the final signature copy of the settlement documents."

         On February 26, 2016, the parties filed the proposed consent decree and order resolving the injunctive relief claims against Dhingra, Inc., and Parminder Dhingra only; and a stipulated court-enforceable settlement agreement providing for payment of $12, 000 in damages, plus a release of claims, between the plaintiff and 7-Eleven Inc. and the Burge Family Trust. The parties filed an amended stipulation on February 29, 2016, and the court entered both the proposed consent degree and the proposed settlement agreement. In the settlement agreement, the parties stated that they had not resolved any claims for fees and costs, and they agreed that the court would not dismiss the action in its entirety until after the issue of fees and costs had been resolved.

         On March 2, 2016, plaintiff’s counsel Paul L. Rein provided Mr. Orr with a summary of fees and expenses - $59, 161 in fees and $7, 620 in litigation expenses (including $4, 339 for the access expert). Mr. Rein added that "litigation of these issues . . . may result in additional attorney fees of $15, 000 to $20, 000 recoverable by plaintiff." He stated that "[t]o encourage a prompt settlement, we will offer your clients a 5% reduction of our attorney fees (but not our out-of-pocket costs) provided that this case is settled for that amount . . . by our receipt of defendants' written acceptance by Friday, March 11, 2016." He added, “After that, I must prepare the attorney fees motions . . . ."

         On March 10, 2016, Mr. Orr requested a "detailed fee statement showing the work done so that we can provide to our client for review." On March 11, 2016, Mr. Rein's office responded with "itemized summaries by task of the work performed on this case, including an overall summary and by each attorney . . . and paralegal." The amount requested in fees per that summary was $59, 353 for all attorneys and paralegals. It was also broken down by individual, although the work was summarized by categories, such as "analysis/strategy/research, " "client communications, " "defendant communications, " "fact investigation/development, " "motions, " and "pleadings."

         Mr. Rein states in his declaration that as no response had been received by March 15, 2016, "we continued preparation of the fees motion." On March 17, 2016, Mr. Orr sent an email thanking Mr. Rein for the information, but stating that "the documentation did not provide a detailed breakdown of the tasks performed by the billing individuals that would allow my client to see what actual work was done" and that "[a]s a result, my clients cannot evaluate the reasonableness of the claimed fees."

         Mr. Orr added that at the time defendants made the Rule 68 offer of $8, 001, "[p]laintiff's fees and costs could not have been more than $20, 000, " which meant that plaintiff had incurred over $30, 000 in additional fees to obtain an additional $4, 000 in damages. He asserted that "[w]e believe a court will find this highly unreasonable, " and offered to pay the fees incurred prior to the Rule 68 offer, estimated at $20, 000 for all fees and costs. Mr. Rein states in his declaration that this response, which defendants submitted just five court days before the fees motion was due, necessitated the present motion, which was filed on March 23, 2016. Following the filing of the motion, defendants increased the offer from $20, 000 to $40, 000.

         In the moving papers, plaintiff seeks a total of $74, 683 in fees for work performed by two attorneys and three paralegals from the Law Offices of Paul L. Rein: $31, 799 for Mr. Rein (49.3 hours at $645/hr.); $39, 188 for Ms. Cabalo (82.5 hours at $475/hr.); $1, 691 for Aaron Clefton, Senior Paralegal (8.9 hours at $190/hr.); $1, 721 for Emily O'Donohoe, Paralegal (11.1 hours at $155/hr.); and $284 for Holly Jaramillo, Paralegal (2.1 hours at $135/hr.). In addition, plaintiff seeks $14, 021 in additional fees for work done on the reply to defendants’ opposition (20 additional hours, or $12, 900 for Mr. Rein, [1] and 5.9 additional hours, or $1, 121 for Mr. Clefton). Plaintiff also seeks $8, 029 in litigation expenses and costs.


         A. Legal Standard

         In determining a reasonable fee award, the court calculates the “lodestar figure” by taking the number of hours reasonably expended on the litigation, and multiplying it by a reasonable hourly rate. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

         There is a “strong presumption” that the lodestar figure represents a reasonable fee and that adjustment upward or downward is “the exception rather than the rule.” D'Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1384 (9th Cir. 1990); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010); City of Burlington v. Dague, 505 U.S. 557, 562 (1992). However, in “appropriate cases” the court may enhance or reduce the lodestar figure based on an evaluation of the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.1975), that were not taken into account in the initial lodestar calculation. Intel Corp. v. Terabyte Int'l, Inc., 6 F.3d 614, 622 (9th Cir. 1993).

         The plaintiff bears the burden of submitting detailed records documenting “the hours worked and rates claimed.” Hensley, 461 U.S. at 434. The court may reduce those hours if the documentation is inadequate, the submitted hours are duplicative or inefficient, or the requested fees appear excessive or otherwise unnecessary. Id.; see also Chalmers v. L.A., 796 F.2d 1205, 1210 (9th Cir.1986).

         B. Plaintiff's Motion

         Plaintiff seeks an award of attorney's fees incurred in connection with successfully prosecuting this action under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181, et seq.; California Health & Safety Code §§ 19955, et seq.; California Civil Code §§ 51, 52, and 54, et seq.; and California Business & Professions Code § 17200, et seq. Plaintiff also seeks to recover costs and litigation expenses.

         Plaintiff argues that as the prevailing party, he is entitled to receive his attorney's fees and litigation expenses under the above cited disability rights statutes. He contends that his counsel's hourly rates are moderate and justified by counsel's education, demonstrated skills, and specialized experience; and that the requested hourly rates have previously been approved by other judges in cases pending in this district, and are in fact lower than rates approved in this judicial district for attorneys with similar or even less experience. He also asserts that his out-of-pocket litigation expenses and costs are reasonable and should be fully compensated.

         The ADA provides for an award of “a reasonable attorney’s fee, including litigation expenses, and costs, ” to the prevailing party in actions under ADA Titles II and III. 42 U.S.C. § 12205; 28 C.F.R. § 36.505. Under federal law, the amount of an attorney’s fees award under the ADA is left to the court’s discretion. A prevailing plaintiff under the ADA “should ordinarily recover an attorney's fee unless special circumstances would render such an ...

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