United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS RE:
DKT. NO. 34
VIRGINIA K. DEMARCHI, UNITED STATES MAGISTRATE JUDGE
Scott Johnson filed this suit, asserting claims under Title
III of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12181, et seq.
and the California Unruh Civil Rights Act (“Unruh
Act”), Cal. Civ. Code §§ 51-53. He claimed
that due to the presence of architectural barriers, he was
denied full and equal access during two visits to Navarra
Auto in San Jose, California. Specifically, he claimed that
there was no compliant accessible parking space and that the
transaction counter was too high. Dkt. No. 1 ¶¶ 18,
21-23, 25-27. Defendants Ali and Ebi Shobeiri own Naravrra
Auto. Id. ¶¶ 2-13; Dkt. No. 8 ¶¶
to General Order No. 56, the parties' last day to conduct
a joint site inspection was November 23, 2018, and Mr.
Johnson's last day to file a notice of need for mediation
was January 4, 2019. Dkt. No. 5. Mr. Johnson neither filed a
notice of need for mediation nor requested an extension of
time to do so. Accordingly, on January 8, 2019, the Court
issued an order directing Mr. Johnson to show cause why this
action should not be dismissed for his apparent failure to
prosecute this matter. Dkt. No. 14.
billing statement presented by Mr. Johnson indicates that his
counsel made no time entries between November 7, 2018 (when
records indicate that Mr. Johnson's counsel had a phone
conversation with defense counsel about scheduling the joint
site inspection) and January 8, 2019 (when the Court issued
its order to show cause). Dkt. No. 34-5 at ECF 3. That same
billing statement indicates that on January 9, 2019, Mr.
Johnson's counsel reviewed the order to show cause and
also settled the case. Id.
January 15, 2019, Mr. Johnson advised that the parties
reached a settlement, but required time to prepare and
finalize the necessary documents. Dkt. Nos. 16, 17. On
January 16, 2019, the Court issued an order to show cause
regarding the settlement, setting a March 15, 2019 deadline
for the dismissal of this matter. Dkt. No. 19. At the
parties' request, the Court later extended that deadline
to April 15, 2019. Dkt. No. 21. Thereafter, the parties
encountered difficulties finalizing a settlement, requiring
an appearance before this Court. Dkt. Nos. 22, 24, 27. The
Court directed the parties to submit documentation reflecting
matters that had been resolved. Dkt. No. 28. If they failed
to do so, or if their filing indicated that the case was not
fully resolved, then the Court stated that it would set the
matter for trial. Id.
April 26, 2019, the parties stipulated to a judgment
requiring defendants to provide a fully accessible van
parking space and a lowered transaction counter at Navarra
Auto; to maintain the property in compliance with applicable
guidelines and standards; and to pay Mr. Johnson a total of
$8, 000 in statutory penalties, plus fees and costs to be
determined by the Court. Dkt. No. 30. On April 30, 2019, the
Court entered an order and judgment accordingly. Dkt. Nos.
Johnson now moves for an award of his attorneys' fees and
costs. He originally requested $16, 267.00 in fees and $870
in costs. At the Court's request, Mr. Johnson's
counsel submitted supplemental papers specifying the time,
initially provided as estimates, that his attorneys spent
preparing his reply papers and appearing at the motion
hearing. Dkt. No. 41. According to that supplemental filing,
Mr. Johnson's revised totals reflect a downward
adjustment of 2.6 hours from his original requested fees.
Id. ¶ 9. Defendants do not object to Mr.
Johnson's request for $870 in costs, and pursuant to the
stipulated judgment, they agree that Mr. Johnson is entitled
to some amount of attorneys' fees. However, defendants
contend that the amount of fees Mr. Johnson requests is
excessive. Upon consideration of the moving and responding
papers,  as
well as the oral arguments presented, the Court grants Mr.
Johnson's motion in part and denies it in part.
gives courts the discretion to award attorney's fees,
including litigation expenses and costs, to prevailing
parties. Molski v. M.J. Cable, Inc., 481 F.3d 724,
730 (9th Cir. 2007) (citing 42 U.S.C. § 12205).
Similarly, the Unruh Act provides for an award of fees
“as may be determined by the court.” Cal. Civ.
Code § 52(b)(3).
calculating attorney's fees under California or federal
law, courts follow the lodestar approach. “The most
useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983),
abrogated on other grounds by Tex. State Teachers
Ass'n. v. Garland Indep. Sch. Dist., 489 U.S. 782
(1989). The party seeking an award of fees should submit
evidence supporting the hours worked and rates claimed.
Reasonable Hourly Rate
determining a reasonable hourly rate, the district court
should be guided by the rate prevailing in the community for
similar work performed by attorneys of comparable skill,
experience, and reputation.” Chalmers v. City of
Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986),
reh'g denied, amended on other grounds, 808 F.2d 1373
(9th Cir. 1987) (citing Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984)). “Generally, the relevant
community is the forum in which the district court
sits.” Barjon v. Dalton, 132 F.3d 496, 500
(9th Cir. 1997). The fee applicant has the burden of
producing evidence, other than declarations of interested
counsel, that the requested rates are in line with those
prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.
Blum, 465 U.S. at 896 n.11. “Affidavits of the
plaintiffs' attorney and other attorneys regarding
prevailing fees in the community, and rate determinations in
other cases, particularly those setting a rate for the
plaintiffs' attorney, are satisfactory evidence of the
prevailing market rate.” United Steelworkers of
America v. Phelps Dodge Co., 896 F.2d 403, 407 (9th Cir.
Johnson seeks fees based on the hourly rates of the following
seven attorneys: Mark Potter ($650/hour); Phyl Grace
($650/hour); Dennis Price ($500/hour); Chris Carson
($500/hour); Amanda Seabock (sometimes referred to in the
papers as “Amanda Lockhart”) ($500/hour);
Prathima Price ($410/hour) and Jennifer McAllister
support the reasonableness of the identified hourly rates,
Mr. Johnson relies on a declaration from Mr. Potter, one of
the attorneys for whom fees are sought. Dkt. No. 34-4. Mr.
Potter's declaration includes a description of the
attorneys' qualifications and experience, as well as a
billing statement for work performed in this case. Mr.
Potter's declaration concludes with the following
Because the nature of my practice is wholly dependent on
billing at a market rate, I have extensive experience with
respect to what attorneys specializing in disability law and
civil rights bill for civil litigation and what courts are
routinely awarding and can attest that the rates billed by
the Center for Disability Access for its attorneys are well
within market rates.
Id. ¶ 12. Mr. Potter does not actually identify
the rates at which attorneys specializing in disability and
other civil rights matters bill for civil litigation, even
though he asserts that he has “extensive
experience” with respect to that information, and even
though he says his practice depends on “billing at a
Johnson's fees request contains scant information about
the prevailing market rate for similar work performed by
attorneys of comparable skill, experience, and reputation in
this community. He has not submitted declarations from other
attorneys attesting to the reasonableness of the claimed
rates. Indeed, at the motion hearing, Mr. Johnson's
counsel acknowledged that his firm handles ADA cases on a
contingency basis, and that (contrary to Mr. Potter's
statements in his declaration) there is no
“market” based on fees and rates that actually
are billed to clients. Rather, the “market” is
based on rates that the court in the relevant district finds
appropriate. Dkt. No. 40. Thus, Mr. Johnson's counsel
also confirmed that for disability access cases, the Center
for Disability Access sets hourly rates based on the district
in which the litigation is pending, and not necessarily on
the district where the client is located. Id. Here,
the primary “market” on which Mr. Johnson relies
to support the claimed hourly rates is comprised of selected
decisions between 2011 and 2019 issued by courts in this
district tasked with deciding fees motions like his. These
cases are listed in a chart in Mr. Johnson's moving
papers. Dkt. No. 34-1 at ECF 11-12.
Johnson principally relies on Love v. Rivendell II, Ltd.,
et al., No. 18-cv-03907-JST (EDL) (N.D. Cal., Mar. 11,
2019), decided by another court of this district, which
approved the claimed rates for Mr. Potter and Ms. Grace.
See Rivendell, Dkt. No. 25 (report and
recommendation); see also Dkt. No. 30 (order
adopting report and recommendation). As another court in this
district recently observed, the Rivendell decision
relied on cases that concerned work that was substantially
different than the work performed in the present action.
See Johnson v. AutoZone, Inc., No. 17-cv-02941-PJH,
2019 WL 2288111, at *6 n.4 (N.D. Cal., May 29, 2019). For
example, Civil Rights Education and Enforcement Ctr. v.
Ashford Hospitality Trust, Inc., No. 15-cv-00216-DMR,
2016 WL 1177950 (N.D. Cal., Mar. 22, 2016), was a complex
class action matter involving 54 hotels spread among multiple
states. In Elder v. Nat'l Conference of Bar
Examiners, the court observed that the case set
“new precedent” that caused the California State
Bar to “change a policy which impacts potentially
hundreds of individuals each year across California.”
No. C11-00199SI, 2011 WL 4079623 at *4 (N.D. Cal. Sept. 12,
2011). And in Rodriguez v. Barrita, 53 F.Supp.3d
1268 (N.D. Cal. 2014), the court approved hourly rates of
$645 for an attorney with over 45 years experience, $550 for
an attorney with 22 years of experience, and $425 for an
attorney who had been working with plaintiff's
counsel's firm for about 5 years. In Rodriguez,
counsel's requested rates were either not contested by
the opposing party or were supported by a declaration from
another disability law attorney. Id. at 1278-79.
Johnson cites to some of those same cases, as well as others.
Dkt No. 34-1 at ECF 11-12. With the exception of
Rivendell, all of the cases Mr. Johnson cites were
decided at least two years before Mr. Johnson's counsel
performed the services at issue here. The Court is required
to consider cases that were decided relatively
contemporaneously with the time the work was performed.
See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973,
981 (9th Cir. 2008) (noting that “in determining the
prevailing market rate a district court abuses its discretion
to the extent it relies on cases decided years before the
attorneys actually rendered their services.”); Bell
v. Clackamas County, 341 F.3d 858, 869 (9th Cir. 2003)
(holding that it was an abuse of discretion for the district
court to apply rates in effect more than two years before the
work was performed). Mr. Johnson's attorneys performed
work in this case from June 2018 through July 2019. In the