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finding the "grossly unequal" standard met where only one defendant overly litigated a case
Summary of this case from Rodgers v. Claim Jumper Restaurant, LLCOpinion
No. 2:13-cv-00061 JAM-CKD
08-12-2014
ROBERT KALANI, Plaintiff, v. NATIONAL SEATING AND MOBILITY, INC.; TRIMBLE LAND COMPANY, LLC, Defendants.
ORDER SUSTAINING DEFENDANTS' OBJECTIONS TO PLAINTIFF'S BILL OF COSTS AND GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES IN PART AND DENYING IN PART
This matter is before the Court on Plaintiff Robert Kalani's ("Plaintiff") Bill of Costs (Doc. #99) and Plaintiff's Motion for Attorney's Fees (Doc. #102). Defendants National Seating & Mobility, Inc. ("NSM") and Trimble Land Company, LLC ("Trimble") (collectively "Defendants") filed joint objections to Plaintiff's bill of costs (Doc. #100) and separately opposed Plaintiff's motion for attorney's fees (Doc. ##111, 112). Plaintiff replied (Doc. #114). For the following reasons, the Court sustains Defendants' objections to Plaintiff's bill of costs and grants in part and denies in part Plaintiff's motion for attorney's fees.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for July 23, 2014.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
The facts are well known to the parties and therefore only a brief summary is provided. This case was initially filed on January 14, 2013 (Doc. #2). In the First Amended Complaint ("FAC"), the operative complaint in this case, Plaintiff alleged three causes of action against Defendants: (1) violation of the Americans with Disabilities Act of 1990 ("ADA"); (2) violation of the Unruh Civil Rights Act ("Unruh Act"); and (3) denial of full and equal access to public facilities. FAC ¶¶ 15-44, Doc. #27. Plaintiff alleged that he visited the store owned/operated by Defendants on May 29, 2012. Id. ¶ 10. He alleged there were 39 barriers. Id. ¶ 11.
On September 25, 2013, the Court granted in part and denied in part NSM's first Motion for Summary Judgment (Doc. #42). On February 19, 2014, the Court heard Plaintiff's Motion for Summary Judgment (Doc. #74) and Defendants' Cross-Motion for Summary Judgment (Doc. #76). At the hearing, the Court granted in part and denied in part Plaintiff's Motion for Summary Judgment, holding that the California Building Code ("CBC") section 1129B.2 requires NSM to provide 20% accessible parking but denying Plaintiff damages under the Unruh Act. Transcript of Cross-Motions for Summary Judgment ("Transcript"), Doc. #89, at 106. The Court also granted in part and denied in part Defendants' Cross-Motion for Summary Judgment, granting summary judgment in favor of Defendants on the remaining contested barriers alleged by Plaintiff. Id. On April 24, 2014, the Court granted Plaintiff's Motion to Amend the Judgment and granted Defendants' Motion to Reconsider, holding that Plaintiff was entitled to $4,000 in damages under the Unruh Act and holding that NSM was not required to provide 20% accessible parking pursuant to the CBC. After judgment was entered, Plaintiff submitted his bill of costs requesting $7,252.37 in costs (Doc. #99) and moved for $143,292.50 in attorney's fees (Doc. ##102, 114).
II. OPINION
A. Bill of Costs
Defendants object to Plaintiff's specific costs and generally, they object to any award of costs because of Plaintiff's limited success.
In this case, both Plaintiff and Defendants are prevailing parties and presumptively entitled to recover costs because the parties prevailed on portions of their motions for summary judgment. Generally, when a court grants "a portion of each side's request for summary judgment . . . . the [court] will not award costs to either side." Barboza v. California Ass'n of Prof'l Firefighters, CIV S-2:08-519-KJM, 2013 WL 4012645, at *4 (E.D. Cal. Aug. 6, 2013) (citing United States v. Curtis-Nevada Mines, Inc., 415 F. Supp. 1373, 1379 (E.D. Cal. 1976), rev'd on other grounds, 611 F.2d 1277 (9th Cir. 1980)); see also C & E Servs., Inc. v. Ashland Inc., 601 F. Supp. 2d 262, 280 (D.D.C. 2009) (holding that each party shall bear its own costs because both parties prevailed in the case and it would be difficult to differentiate between the various claims and theories). Because both parties prevailed on portions of their motions for summary judgment, the Court declines to award costs to Plaintiff. Each party shall bear their own costs.
B. Motion for Attorney Fees
Plaintiff requests attorney fees pursuant to California Civil Code section 52(a). Each Defendant opposes Plaintiff's motion separately; however, to the extent possible, the Court will address both oppositions together.
1. Subject Matter Jurisdiction
NSM argues that the Court must first determine whether it has subject matter jurisdiction to award attorney's fees. A district court lacks jurisdiction to award attorney's fees if the underlying claim was dismissed for lack of subject matter jurisdiction. See Elwood v. Drescher, 456 F.3d 943, 948 (9th Cir. 2006). Here, the underlying claims were not dismissed for lack of subject matter jurisdiction. Further, during the hearing on the summary judgment motions, the Court found that Plaintiff has standing. See Transcript at 97. Therefore, the Court has subject matter jurisdiction to award attorney's fees.
2. Prevailing Party
NSM argues that Plaintiff is not the prevailing party and the Court should revisit Plaintiff's claims regarding the rear grab bar and the lack of an access aisle. However, these arguments are improperly raised in its opposition to Plaintiff's motion for attorney's fees. Accordingly, the Court declines NSM's request to reconsider its previous rulings on Plaintiff's claims.
3. Lodestar
Under the Unruh Act, Plaintiff is entitled to recover "any attorney fees that may be determined by the court." Cal. Civ. Code § 52(a). In civil rights litigation, the "prevailing plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Hensley v. Eckerhart, 461 U.S. 424, 492 (1983) (quoting Newman v. Piggie Park Enter., 390 U.S. 400, 402 (1968)). "The starting point for calculating the amount of a reasonable fee is the number of hours reasonably expended multiplied by a reasonable hourly rate. . . . This lodestar figure is presumptively reasonable and should only be enhanced or reduced in 'rare and exceptional cases.'" Chapman v. Pier 1 Imports, Inc., CV.S-04-1339 LKK/DAD, 2007 WL 2462084, at *1 (E.D. Cal. Aug. 24, 2007) (internal citations omitted).
a. Reasonable Hourly Rate
Plaintiff seeks $300 an hour for attorney Tanya Moore ("Ms. Moore"), $125 an hour for paralegal Whitney Law ("Ms. Law"), and $150 an hour for paralegal Marejka Sacks ("Ms. Sacks"). Trimble does not dispute Ms. Moore's hourly rate (Trimble Opp. at 3); however, NSM argues that her hourly rate should be $250 (NSM Opp. at 16).
In this action, Magistrate Judge Delaney set Ms. Moore's hourly rate at $250 for the purposes of awarding sanctions. See Order Awarding Costs, Oct. 16, 2013, Doc. #62; Order Awarding Costs, Nov. 14, 2013, Doc. #69. Judge Delaney based Ms. Moore's hourly rate on two Eastern District cases from 2007 and 2008 because of her relative inexperience. Contrastingly, another court in this district found that $300 was a reasonable hourly rate for Ms. Moore based on her work on ADA cases. Gutierrez v. Vantia Properties, LLC, 1:13-CV-00642-LJO, 2014 WL 2106570, at *8 (E.D. Cal. May 20, 2014). Ms. Moore has 14 years of legal experience and several years of experience in ADA cases in particular. Id.; Moore Decl. ¶ 30. Therefore, the Court finds that $300 an hour is a reasonable hourly rate for Ms. Moore.
Both NSM and Trimble dispute Ms. Sacks' and Ms. Law's hourly rate, arguing that their rates should not exceed $75 an hour. Trimble Opp. at 3-4; NSM Opp. at 16. In this action, Judge Delaney set both Ms. Sacks and Ms. Law's rate at $75 an hour. See Order Awarding Costs, Oct. 16, 2013, Doc. #62; Order Awarding Costs, Nov. 14, 2013, Doc. #69. In Hall v. City of Fairfield, citied by Plaintiff, the court found that the Sacramento market rate for paralegals is $150. 10-CV-0508 DAD, 2014 WL 1286001, at *8 (E.D. Cal. Mar. 31, 2014). However, in Gutierrez, the court found $115 per hour for work performed by paralegals in ADA cases to be reasonable and awarded Ms. Sacks $115 an hour and a mixed rate of $85 and $115 to Ms. Law depending on the work performed. Gutierrez, 2014 WL 2106570, at *9 (E.D. Cal. May 20, 2014). Ms. Sacks and Ms. Law have 10 and 5 years' experience respectively as paralegals; further, Ms. Sacks has almost 4 years specializing in civil rights cases and Ms. Law has almost 1 year. Accordingly, based on their experience and Gutierrez, the Court finds that Ms. Sacks is entitled to $115 an hour and Ms. Law is entitled to $85 an hour. Ms. Law is not entitled to a mix rate in this case as she was awarded in Gutierrez because Plaintiff has not presented any reason to assign two rates and Ms. Law is not as experienced as Ms. Sacks.
Accordingly, the Court finds the reasonable hourly rates in this case to be as follows: $300 an hour for Ms. Moore, $115 for Ms. Sacks, and $85 for Ms. Law.
b. Hours Billed
Defendants argue that the hours billed in this case are unreasonable. Plaintiff claims that the total hours billed are 321.5 for Ms. Moore, 308.6 for Ms. Sacks, and 64.1 for Ms. Law, and he argues that he has provided sufficient information to enable the Court to consider all the factors necessary to determine a reasonable attorney's fee award. To determine the appropriate lodestar, "[t]he district court also should exclude from this initial fee calculation hours that were not 'reasonably expended.'" Hensley, 461 U.S. at 434.
In this case, Plaintiff provided both an invoice with specific time entries for all the work performed and a chart with a breakdown of the work performed and the hours billed. Mot. 8-13. Based on the invoice and chart, the Court finds the hours expended on the motion to amend to be excessive. This motion was straightforward and did not involve complex legal issues. Therefore, the Court reduces Ms. Moore's and Ms. Sacks' hours from 6.1 and 7.8 respectively to 2 hours each (a 4.1 and 5.8 reductions). See Mot. at 9. Similarly, the Court reduces Ms. Moore's and Ms. Sacks' hours for the motion to strike NSM's amended answer from 4.9 and 6.6 to 1 and 2 hours respectively because the motion was a joint motion with Trimble and it was a simple motion based on a procedural issue; thus, a reduction of 3.9 and 4.6 hours is warranted. Mot. at 11. The Court also reduces the hours expended on NSM's motion to stay discovery from 13.9 total to 6 total (2.5 hours for Ms. Moore, 3 for Ms. Sacks, and 0.5 for Ms. Law) because it was a discovery motion and NSM ultimately withdrew the motion. Further, the Court reduces the hours expended on the reply to Plaintiff's present motion for attorney's fees from 9.10 hours for Ms. Moore to 3 hours and from 11.9 hours for Ms. Sacks to 5 hours because the reply repeated many arguments presented in the original motion. Reply at 9-10. Finally, the Court eliminates all the hours associated with Plaintiff's motion to compel discovery and motion for a protective order because Plaintiff has already been awarded reasonable expenses for these motions. See Order Awarding Costs, Oct. 16, 2013, Doc. #62; Order Awarding Costs, Nov. 14, 2013, Doc. #69. The total reductions in this case are 57.6 for Ms. Moore, 60 for Ms. Sacks, and 16.3 for Ms. Law.
Defendants also argue that Plaintiff has overbilled for clerical work. However, as Plaintiff points out, it is unclear what Defendants define as clerical work. More importantly, the Court finds that the hours billed were expended on substantive work.
Therefore, the Court finds that reasonable hours in this matter are as follows:
| Timekeeper | Hours | Rate | Total |
| Ms. Moore | 263.9 | $300 | $79,170 |
| Ms. Sacks | 248. 6 | $115 | $28,589 |
| Ms. Law | 47.8 | $85 | $4,063 |
After deducting time not deemed by the Court to have been reasonably expended, the lodestar figure for fees in this matter is $111,822.
4. Adjusting the Lodestar
NSM requests a downward adjustment to the lodestar because Plaintiff's victory was slight and several barriers were moot.
In cases of partial success, a court must follow a two-part analysis in deciding whether to reduce the fee award:
First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiff's successful claims. If unrelated, the final fee award may not include time expended on the unsuccessful claims. If the unsuccessful and successful claims are related, then the court must apply the second part of the analysis, in which the court evaluates the 'significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. 'If the plaintiff obtained 'excellent results,' full compensation may be appropriate, but if only [']partial or limited success' was obtained, full compensation may be excessive. Such decisions are within the district court's discretion.
White v. Save Mart Supermarkets, CIV. S03-2402MCEKJM, 2005 WL 2675040, at *4 (E.D. Cal. Oct. 20, 2005) (quoting Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995)).
To determine whether unsuccessful and successful claims are related,
the test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted is premised. Thus, the focus is to be on whether the unsuccessful and successful claims arose out of the same course of conduct.
Id. Here, Plaintiff alleged 39 different barriers. Of those 39, Plaintiff was successful on 2, Defendants were successful on 16, and 21 were mooted. Plaintiff argues that the two claims—ADA and Unruh Act—involved the exact same facts and analysis, and therefore, the Court should award the total fee amount. Although the ADA and Unruh Act are related in this matter, each alleged barrier was different and "premised on different sections of the ADA Accessibility Guidelines to determine liability." Id. Therefore, the Court finds that each barrier is unrelated and distinct. Moreover, Plaintiff is not the prevailing party for the barriers that were mooted. See Buckhannon Bd. & Care Home, Inc. v. West Va. Dept. of Health, 532 U.S. 598 (2001) (holding that where a plaintiff's lawsuit is the catalyst that caused defendants to remove barriers but where the plaintiff fails to secure a judgment, he is not the prevailing party on the ADA claim because he did not secure a material alteration in the relationship between the parties). Because it is impossible to apportion fees between Plaintiff's 2 successful claims, 16 unsuccessful claims, and 21 mooted claims, the Court reduces Plaintiff's award of attorney's fees by 90% to account for her limited success. Accordingly, the attorney's fee award in this case is $11,182.20.
5. Apportionment of Fees
Trimble requests apportionment of fees because the time expended by Plaintiff for each Defendant is grossly unequal. "In deciding whether apportionment is mandated, the court focuses on the time expended by the plaintiff in pursuing each defendant, rather than on relative liability." El-Hakem v. BJY Inc., 415 F.3d 1068, 1075 (9th Cir. 2005)(citation omitted). The Ninth Circuit has "held that a court abuse[s] its discretion in not apportioning fees when the time expended by the plaintiff in pursuing each defendant was grossly unequal." Id. (citation omitted). In this case, Trimble did not oppose Plaintiff's motion to amend, joined the motion to strike NSM's second amended answer, did not join several motions filed by NSM, and did not engage in unnecessary discovery disputes. Plaintiff and NSM, not Trimble, overly litigated this action. Therefore, the Court finds that apportionment of fees is mandated in this case. Accordingly, the Court holds Trimble liable for 25% ($2,795.55) and NSM liable for 75% ($8,386.65) of the total award fee.
III. ORDER
For the reasons set forth above, the Court SUSTAINS Defendants' objections to Plaintiff's Bill of Costs and denies Plaintiff's costs. In addition, the Court GRANTS Plaintiff's motion for attorney's fees in part and DENIES in part. The Court awards Plaintiff $11,182.20 in attorney's fees, of which Trimble is liable for 25% ($2,795.55) and NSM is liable for 75% ($8,386.65).
IT IS SO ORDERED. Dated: August 12, 2014
/s/_________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE