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Johnson v. Shobeiri

United States District Court, N.D. California, San Jose Division

October 24, 2019

SCOTT JOHNSON, Plaintiff,
v.
ALI SHOBEIRI, et al., Defendants.

          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

         I. BACKGROUND

         Plaintiff 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 ¶¶ 2-13.

         Pursuant 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.

         A 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.

         On 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.

         On 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. 32, 33.

         Mr. 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, [1] as well as the oral arguments presented, the Court grants Mr. Johnson's motion in part and denies it in part.

         II. DISCUSSION

         The ADA 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).

         Whether 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. Id.

         A. Reasonable Hourly Rate

         “In 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. 1990).

         Mr. 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 ($410/hour).

         To 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 assertion:

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 market rate.”

         Mr. 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.

         Mr. 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.

         Mr. 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 ...


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