United States District Court, N.D. California
ORDER RE PLAINTIFF'S MOTION FOR ATTORNEY'S
FEES AND COSTS
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.
BACKGROUND
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.
DISCUSSION
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 ...