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Johnson v. Elk Horn Gas, Inc.

United States District Court, E.D. California

May 1, 2018

ELK HORN GAS INC., Defendant.



         This lawsuit was brought by Plaintiff Scott Johnson (“Plaintiff”) under the provisions of both the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”), and California's Unruh Civil Rights and Disabled Persons Acts (Cal. Civ. Code §§ 51-53, 54-54.8)[1] on grounds that Defendant Elk Horn Gas, Inc. (“Elk Horn”) failed to provide a compliant accessible parking space and transaction counter at its Elkhorn Shell service station located at 4261 Elkhorn Blvd in North Highlands, California.

         Presently before the Court is Plaintiff's Motion for Attorney's Fees and Litigation Expenses (ECF No. 49). Plaintiff seeks attorney's fees totaling $17, 315 and litigation expenses of $620, for a total amount of $17, 935. Defendant Elk Horn has failed to oppose the Motion.

         As set forth below, Plaintiff's Motion is GRANTED, but the Court finds that only $12, 630 in attorney's fees are recoverable, which along with the $620 spent as litigation costs, results in a total of $13, 250.[2]


         Plaintiff, a California resident, is a level C-5 quadriplegic who cannot walk and has manual dexterity impairments. He uses a wheelchair and has a special van to facilitate movement.

         On September 11, 2013, Plaintiff claims he went to Defendant's Elkhorn Shell station and discovered that the “van accessible” parking stall lacked signage and was too steep and uneven for him to exit his vehicle safely and independently in a wheelchair. In addition, when Plaintiff went inside the station to make his purchase, he states he discovered that the transaction counter was too high for him to use when seated in his chair. According to Plaintiff, he returned to the Elkhorn Shell on four additional occasions and encountered the same barriers on each subsequent visit.

         On March 19, 2017, Plaintiff moved for summary judgment on grounds that the barriers he encountered violated the ADA as a matter of law. Plaintiff therefore claimed entitlement to statutory damages under California's Unruh Civil Rights Act, which provides for a statutory penalty of $4, 000 for each ADA violation under Cal. Civ. Code § 55.56(a). Although Plaintiff visited Elkhorn Shell on a total of five different occasions and claims he was subjected to access barriers on each occasion, he sought statutory damages for only two visits. Defendant Elk Horn failed to oppose Plaintiff's summary judgment request and, by Memorandum and Order filed October 7, 2017, the Court granted Plaintiff's Motion and entered judgment in favor of Plaintiff.

         Given the judgment rendered in his favor, Plaintiff brought the Motion for fees and costs now before the Court given his status as a prevailing party. Specifically, Plaintiff, who is represented by the Center for Disability Access, seeks to recover $350 per hour for work performed by partner Mark Potter, a $300 hourly figure for associate Phyl Grace, $250 an hour for work performed by associates Dennis Price and Isabel Masanque, and a $200 per hour rate for time expended by associates Amanda Lockhart and Sara Gunderson.


         Section 12205 of the ADA authorizes a court, in its discretion, to “allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs . . . .” 42 U.S.C. § 12205. A prevailing plaintiff under a statute so worded “should recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1976). Moreover, Section 55 of the Califirnia Civil Code provides that “[t]he prevailing party in the action shall be entitled to recover reasonable attorney's fees.” Cal. Civ. Code § 55. A plaintiff who enters a legally enforceable settlement agreement is considered a prevailing party. Barrios v. Cal. Interscholastic Federation, 277 F.3d 1128, 1134 (2002).

         Attorney's fees are calculated using the lodestar method, under which “a reasonable hourly rate [is multiplied] by the number of hours reasonably expended on the litigation.” Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). The lodestar figure may then be adjusted based on an analysis of twelve factors as outlined by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). These factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of 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.

Id. at 430, n. 3. Plaintiff has the burden of “produc[ing] satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by ...

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