United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER ADOPTING IN PART AND
MODIFYING IN PART FINDINGS AND RECOMMENDATIONS (DOC.
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
October 31, 2016, Plaintiff Jose Trujillo filed a complaint
pursuant to Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-12213; the
California Unruh Act, California Civil Code § 51 et
seq.; and California Health & Safety Code
§§ 19955, 19959. Doc. 1. The complaint seeks an
award of statutory damages, prejudgment interest on the
damages, costs of suit, attorney's fees, and injunctive
relief. Id. Plaintiff alleges that he requires the
use of a wheelchair or cane for mobility, Doc. 1, ¶ 8,
and the property that is the subject of this suit, Super 7,
located at 41304 Road 128 in Orosi, California (the
“Property”), presents numerous architectural
barriers that interfered with his ability to use and enjoy
the goods, services, privileges, and accommodations offered
at the facility. Doc. 1, ¶ 10.
Balvir Singh and Darshan Singh were served with the Complaint
on November 19, 2016, Docs. 4 & 5, and defaults were
entered against them on January 9, 2017. Doc. 7. Plaintiff
then filed a motion for default judgment (the
“Motion”) against Defendants on February 2, 2017.
Doc. 9. In the Motion, Plaintiff requested injunctive relief,
$4, 000 in statutory damages, $3, 690 in legal fees, and $1,
488 in costs. Doc. 9-1 at 6-9. No opposition to the Motion
March 15, 2017, the assigned magistrate judge issued findings
and recommendations (the “F&Rs”), in which
she recommended that the Court grant the Motion in part and
reduce the requested legal fees and costs to $2, 000 and $1,
488, respectively. Doc. 13 at 8-13. The magistrate judge
specifically recommended that the Court: (1) enter judgment
in favor of Plaintiff and against Defendant; (2) award
Plaintiff statutory damages in the amount of $4, 000; (3)
award Plaintiff attorney's fees in the amount of $1, 475
for Plaintiff's counsel, Tanya Moore (5.9 hours instead
of 9.9 hours at $250 instead of the requested $300 per hour),
paralegal fees in the amount of $270 for a senior paralegal
in Ms. Moore's office, Whitney Law (3.6 hours instead of
the requested 5.8 hours at $75 instead of the requested $115
per hour), and $255 for another paralegal, David Guthrie (3.4
hours at $75 instead of the requested $95 per hour); as well
as (4) costs of suit in the amount of $1, 488. Id.
F&Rs were served upon Defendant and contained notice that
any objections were to be filed within fourteen (14) days
after service. See id. at 13. More than 14 days have
passed and Defendant has not filed an objection to the
F&Rs. Plaintiff did file objections to the hourly rates
the F&Rs used to calculate the attorney's fee award.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(c), this Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, the Court finds the findings and recommendations to be
supported by the record and proper analysis in all but one
respect: the hourly rate used to calculate the attorney's
has been some inconsistency within this district regarding an
appropriate hourly rate to use for Ms. Moore's not
infrequent attorney's fees requests. Some decisions,
including more than one adopted by the undersigned, have used
$300 as Ms. Moore's hourly rate and $115 as the rate for
the upper-level paralegal in her office. See, e.g.,
Moore v. Millenium Acquisitions, LLC, No.
1:14-cv-01402 DAD-SAB, 2017 WL 1079753, at *3 (E.D. Cal. Mar.
21, 2017); Moore v. Watkins, No. 1:15-cv-00115
JAM-GSA, 2015 WL 5923404, at *5 (E.D. Cal. Oct. 9, 2015),
findings and recommendation adopted, 1:15-cv-00115,
Doc. 32 (Feb. 18, 2016); Kalani v. Nat'l Seating and
Mobility, Inc., No. 2:13-cv-00061 JAM-CKD, 2014 WL
3956669, at *2-3 (E.D. Cal. Aug. 13, 2014); Gutierrez v.
Vantia Props., LLC, No. 1:13-cv-00642 LJO-SKO, 2014 WL
2106570, at *8 (E.D. Cal. May 20, 2014), findings
and recommendation adopted, 1:13-cv-00642, Doc.
43 (June 16, 2014); Moore v. E-Z-N-Quick, No.
1:13-cv-01522 LJO-SAB, 2014 WL 1665034, at *6 (E.D. Cal. Apr.
24, 2014), findings and recommendation adopted,
1:13-cv-01522, Doc. 19 (May 30, 2014); Moore v.
Ruiz, No. 1:11-cv-2159 LJO-GSA, 2012 WL 3778874, at *6
(E.D. Cal. Aug. 31, 2012), findings and recommendation
adopted, 1:11-cv-2159, Doc. 18 (Sept. 19, 2012). Other
decisions, including at least one adopted by the undersigned,
have used $250 as Ms. Moore's hourly rate and $75 for all
paralegal hours. Kalani v. Statewide Petroleum,
Inc., No. 2:13-cv-02287 KJM-AC, 2014 WL 4230920, at *6
(E.D. Cal. Aug. 25, 2014); Trujillo v. Ali, No.
1:16-cv-00694 LJO-SKO, 2016 WL 6902313, at *7 (E.D. Cal. Nov.
23, 2016)(same), findings and recommendation
adopted, 1:16-cv-694, Doc. 23 (Jan 26, 2017); Moore
v. Chase, Inc., No. 1:14-CV-01178 SKO, 2016 WL 3648949,
at *3 (E.D. Cal. July 7, 2016)(same).
attorney's hourly rate is calculated according to the
prevailing market rates in the relevant community and should
comport with the rates prevailing in the community for
similar services by lawyers of reasonably comparable skill,
experience, and reputation. Shirrod v. Office of
Workers' Compensation Programs, 809 F.3d 1082, 1086
(9th Cir. 2015). The relevant community is the forum where
the district court sits. Id. Absent from any of the
cases cited above, or by Plaintiffs, or in F&Rs, or from
any authority on which those cases rely, is any objective
evidence pertaining to the prevailing market rates in this
of the conflicting hourly rate determinations among similar
ADA cases in this division, The Court ordered Plaintiff to
supplement the record:
Plaintiff cannot satisfy his burden to establish the
prevailing market rate in the Fresno division with citation
to case authority alone. . . . While rate determinations in
other cases, particularly those setting a rate for the
plaintiff's attorney may be considered satisfactory
evidence of the prevailing market rate, these cases are not
binding upon the Court nor do they sufficiently satisfy the
evidentiary burden of the fee applicant due to the
discrepancy in hourly rate awards. There must be objective
support in the record before this Court - i.e., some type of
local rate report and/or affidavits of local counsel - that
either establish $300.00 is the prevailing hourly market rate
in Fresno for attorneys of similar experience and skill or
that $300.00 is an out-of-district hourly rate that should be
awarded because local counsel could not be retained or the
special expertise of outside-the-district counsel was
necessary. See Barjon v. Dalton, 132 F.3d 496, 500
(9th Cir. 1997).
Doc. 17 at 3-4.
filed supplemental evidence on April 19, 2017. Doc. 18. Among
other things, Plaintiff presented the widely recognized
compilation of attorney and paralegal rate data provided in
the Laffey Matrix, which is regularly prepared and updated by
the Civil Division of the United States Attorney's Office
for the District of Columbia and used in fee shifting cases,
among others. See
(last visited May 5, 2017). The Matrix, which only surveys
prevailing rates in the Washington, D.C./Baltimore, MD legal
community does not directly correlate to hourly rates for
attorneys and paralegals in other parts of the country.
See Fitzgerald v. Law Office of Curtis O. Barnes,
No. 1:12-CV-00071-LJO-GSA, 2013 WL 1627740, at *3 (E.D. Cal.
Apr. 15, 2013), findings and recommendation adopted,
2013 WL 1896273 (E.D. Cal. May 6, 2013) (finding Laffey
Matrix inapposite for determining Fresno rates).
Plaintiff also presents a rational mechanism for adjusting
the Laffey Matrix rates to Fresno's market. The United
States Bureau of Labor Statistics publishes wage estimates
for private lawyers and paralegals in many major metropolitan
areas, allowing for a comparison of those in the
Baltimore/Washington, D.C. area to those in the Fresno area,
visited May 5, 2017) (“BLS data”). The published
wages are for private attorneys and paralegals, and provide a
mean hourly wage of what each are actually paid (i.e.,
without regard for the number of years in practice). The
Court agrees with Plaintiff that it is reasonable to presume
that the mean hourly rates charged by firms to their clients
bear a direct relationship to the hourly rates earned by the
billers. Therefore, the percentage difference in the mean
amounts paid to attorneys and paralegals in the
Baltimore/Washington, D.C. and Fresno are a constant that can
be applied to reduce the Matrix prevailing rates
data reflects the following mean hourly rate earned by
attorneys and ...