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determining $300 hourly rate is reasonable for attorney with extensive experience who founded the law firm
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No. 2:13-cv-00431-KJM-AC
09-14-2016
JAMES MCCARTY, et al., Plaintiffs, v. RUSSELL HUMPHREY, et al., Defendants.
ORDER
This matter is before the court on a motion for attorney's fees and costs brought by plaintiffs James and Robert McCarty under the federal Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51 et seq., and the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. Defendants oppose the motion. The court submitted the matter as provided by Local Rule 230(g). As explained below, the court GRANTS IN PART plaintiffs' motion.
I. BACKGROUND
Plaintiffs James and Robert McCarty are over eighty years old and are physically disabled. See Order at 2, Sept. 15, 2015, ECF No. 93 ("Second Summ. J. Order"). They filed this action on March 4, 2013, after encountering accessibility barriers at the Lakeshore Plaza in Lodi, California (the Property). See generally Compl., ECF No. 3. Plaintiffs brought claims for violations of the ADA, the Unruh Act, and the California Disabled Persons Act, and a claim for common law negligence. See id. They sought injunctive relief and statutory damages. Id. at 30-32. Defendants answered. ECF Nos. 15-17. Plaintiffs subsequently filed a first amended complaint, ECF No. 29, and defendants filed an amended answer, ECF No. 46. Defendants alleged plaintiffs had no subjective intent to use the facilities at issue. Id. ¶ 124. They alleged the sole purpose of plaintiffs' visit was to seek access to the facilities for purposes of bringing this action and seeking revenge against defendant Russell Humphrey, who had previously filed a separate lawsuit against them. See id. Mr. Humphrey is an attorney whose office is located at Lakeshore Plaza. See Second Summ. J. Order at 2. The remaining defendants either own or lease an office at the Plaza. See id.
On September 16, 2014, almost a year after the court's deadline for seeking amendment of the pleadings had passed, plaintiffs moved for leave to file a second amended complaint. ECF No. 52. On October 10, 2014, before the court had ruled on plaintiffs' motion, plaintiffs moved for summary judgment, relying heavily on new barriers identified in their proposed second amended complaint. ECF No. 53. Defendants opposed the motion to amend, ECF No. 54, and requested additional time to respond to the motion for summary judgment, ECF No. 57. The court initially granted defendants' request for a continuance, ECF No. 58, but then denied the request upon further consideration, ECF No. 61. On October 31, 2014, the court denied plaintiffs' motion for leave to file a second amended complaint. ECF No. 63. Defendants opposed the then-pending motion for summary judgment, ECF No. 64, and plaintiffs replied, ECF No. 65. On January 29, 2015, the court denied plaintiffs' motion for summary judgment without prejudice to refiling a motion for summary judgment limited to the barriers identified in the operative first amended complaint. ECF No. 69.
Plaintiffs subsequently filed a second motion for summary judgment. ECF No. 70. Defendants opposed the motion, ECF Nos. 77 & 80, and requested a continuance under Federal Rule of Civil Procedure 56(d) to conduct discovery with respect to DeAnne Caron, the person who performed plaintiffs' initial ADA inspection of the Property, ECF No. 85. On September 15, 2015, the court granted in part and denied in part plaintiffs' second motion for summary judgment. Second Summ. J. Order. Specifically, the court granted the motion and awarded plaintiffs $8,000 each in statutory damages for their Unruh Act claim based on the insufficient number of handicap-accessible parking spaces at the time of plaintiffs' two visits; granted the motion as to the ADA claims based on non-compliant stairway handrails and surface slope barriers; denied the motion as moot as to the ADA claims based on the lack of a van-accessible parking space and the tow away sign; and denied the motion as to the ADA claims based on the cross-slope of the walkway, the directional signage for the path of travel, the directional sign at the stairway, and the men's restrooms. Id. at 6-10, 13. The court found defendants jointly and severally liable for the ADA violations. Id. at 10-11. The court also denied defendants' request for a continuance under Rule 56(d). Id. at 11-13. To give effect to its September 15, 2015 order, the court later ordered defendants to take actions to ensure compliance as to the stairway handrails and the surface slopes of certain parking spaces based on a proposed order (ECF No. 94) submitted by plaintiffs. Order, Oct. 16, 2015, ECF No. 95.
Thereafter, the parties engaged in settlement discussions regarding any remaining claims. On November 30, 2015, the parties filed a stipulation and notice of intent to settle, ECF No. 97, and on February 16, 2016, nearly three years after this action was filed, the parties filed a joint request for dismissal with prejudice based on a settlement agreement, ECF No. 106. Defendants agreed to install side and rear grab bars in the men's restrooms, and plaintiffs agreed to dismiss all remaining claims. Id. at 3-4. The case was dismissed on March 25, 2016, ECF No. 107, and judgment was entered against defendants on April 14, 2016, ECF No. 109, leaving open the question of attorney's fees and costs.
On May 12, 2016, plaintiffs moved for attorney's fees and costs. ECF No. 111 ("Mot."). Defendants opposed the motion, ECF No. 115 ("Opp'n"), and plaintiffs replied, ECF No. 116 ("Reply").
II. LEGAL STANDARD
The ADA, Unruh Act, and California Disabled Persons Act each permit recovery by a "prevailing" plaintiff. 42 U.S.C. § 12205; Cal. Civ. Code §§ 52(a), 55. Such fee-shifting statutes "enable private parties to obtain legal help in seeking redress for injuries resulting from actual or threatened violation of specific . . . laws," Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); they are not intended "to punish or reward attorneys." Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000). A plaintiff who enters into a legally enforceable settlement agreement is considered a prevailing party. Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134 (9th Cir. 2002). And because plaintiff here has obtained "substantial relief" on "related" claims, the court may award full fees under either claim and need not distinguish between or among those awarded under each. See El-Hakem v. BJY Inc., 415 F.3d 1068, 1075-76 (9th Cir. 2005); see also Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 901-02 (9th Cir. 1995) (discussing Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)).
To calculate recoverable fees, both federal and state courts look to the lodestar, Hensley, 461 U.S. at 433; Ketchum v. Moses, 24 Cal. 4th 1122, 1131-32 (2001), which is "strong[ly] presum[ed]" to represent a reasonable fee, Del. Valley Citizens' Council for Clean Air, 478 U.S. at 565; Hiken v. Dep't of Def., No. 13-17073, ___ F.3d ___, 2016 WL 4608147, at *5 (9th Cir. Sept. 6, 2016). The court arrives at this figure by multiplying the number of hours reasonably expended by a reasonable hourly rate. Hensley, 461 U.S. at 433; Ketchum, 24 Cal. 4th at 1131-32. In "rare and exceptional cases," the lodestar figure may be adjusted by using a multiplier. Del. Valley Citizens Council for Clean Air, 478 U.S. at 565 (internal quotation marks omitted).
III. DISCUSSION
A. Attorney's Fees
Plaintiffs seek attorney's fees based on the lodestar without any adjustment. Defendants do not challenge plaintiffs' prevailing party status or entitlement to attorney's fees. Plaintiffs won substantial relief both through the court's order granting in part their second motion for summary judgment, see ECF Nos. 93 & 95, and the settlement agreement regarding plaintiffs' claim based on the men's restrooms, ECF No. 106-1. Neither do defendants challenge plaintiffs' requested hourly rates, specific billing entries, or the requested costs. Instead, defendants generally challenge the overall fees requested as being "unreasonable and extraordinarily excessive," Opp'n at 1, and contend the court should award no more than $20,000, id. at 11. Specifically, defendants argue the requested amount is unreasonable on its face because the case was a typical, straightforward ADA case; there was only one deposition; plaintiffs' counsel has a history of demanding unreasonable attorney's fees; plaintiffs never sought to settle before seeking summary judgment; defendants' attorney's fees are no more than $25,000, approximately one-sixth of the amount requested by plaintiffs; and plaintiffs' motion for leave to amend the complaint and first motion for summary judgment were frivolous. See generally id. at 4-14. Defendants also say there was only one court appearance, id., but as plaintiffs note, there were in fact two court appearances, with defendants failing to appear at the Status (Pretrial Scheduling) Conference held on September 19, 2013. See Reply at 9; see also Minutes for Status (Pretrial Sched.) Conf., Sept. 19, 2013, ECF No. 24; Minutes for Mot. Hr'g, May 22, 2015, ECF No. 88. Defendants again insist this action was a "revenge suit" intended to run up exorbitant attorney's fees. Id. at 2-3.
The court will first review the requested hours and hourly rates, and then will consider whether any adjustment to the lodestar is warranted.
1. Reasonable Hours
"The prevailing party has the burden of submitting billing records to establish that the number of hours it has requested [is] reasonable." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The court may reduce the hours "where documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; [or] if the hours expended are deemed excessive or otherwise unnecessary." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), amended on denial of reh'g by 808 F.2d 1373 (9th Cir. 1987). An attorney's sworn testimony "is evidence of considerable weight on the issue of the time required" to perform a task. Blackwell v. Foley, 724 F. Supp. 2d 1068, 1081 (N.D. Cal. 2010) (citation omitted); see also Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) ("[In contingency fee cases], [b]y and large, the court should defer to the winning lawyer's professional judgment as to how much time [he or she] was required to spend on the case . . . ."). "[T]he party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Hiken, 2016 WL 4608147, at *7 (quoting Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992)).
Plaintiffs here request a total of 497.56 hours, based on the following general breakdown, rounded to the nearest hour:
• Investigation: 11 hours
• Case Opening and Related Tasks: 59 hours
• Case Management: 8 hours
• Motion to Amend the Complaint: 7 hours
• Discovery: 87 hours
• Law and Motion: 253 hours
• Settlement Attempts: 28 hours
• Motion for Attorney's Fees: 43 hours Mot. at 14; see Corfee Decl. Ex B (detailed billing statement), ECF No. 111-3. Plaintiffs also seek 10.2 hours spent litigating this motion. Reply at 9; Corfee Decl. II ¶ 3, ECF No. 116-1. Plaintiffs discounted certain hours as excessive or duplicative and discounted hours incurred in connection with their unsuccessful motion for leave to file a second amended complaint (ECF No. 52), including the portions of the first motion for summary judgment that addressed the proposed amendments (ECF No. 53). Corfee Decl. ¶¶ 15-16; Reply at 4.
Plaintiffs' motion for leave to amend, however, was frivolous and entirely ignored Federal Rule of Civil Procedure 16, so the court finds plaintiffs' counsel should not be compensated for any fees incurred in connection with the motion; no such hours were "reasonably" incurred. See Order at 3-4, Oct. 31, 2014, ECF No. 63. Accordingly, the court strikes the requested seven hours for the motion to amend. See Mot. at 14. It is not clear which specific entries plaintiffs' counsel have already discounted in connection with the motion, but it appears they still are requesting .9 hours for Catherine Corfee and 6.1 hours for Arash Khosrowshahi, so the court will reduce their respective hours accordingly. See id.; Reply at 4; Corfee Decl. Ex. B (Sept. 9, 2014 through Oct. 21, 2014); cf. Fox v. Vice, 563 U.S. 826, 838 (2011) (in determining the fee award, courts need not "achieve auditing perfection" or "become green-eyeshade accountants").
The court finds the remaining hours requested to be reasonable. Although the issues involved were relatively straight-forward, litigation of the case lasted over three years and required substantial motion practice. It is not facially unreasonable to spend approximately 500 hours over the course of three years litigating a case of this type. Defendants themselves increased the number of hours necessarily expended by missing filing deadlines, requesting continuances, pursuing their "revenge theory" defense, and filing a late, frivolous motion seeking the consideration of new evidence. See, e.g., ECF Nos. 26, 38, 54, 85, 87. In choosing their litigation strategy, defendants assumed the risk they would have to reimburse additional expenses. And while plaintiffs have submitted evidence of their specific settlement attempts during the litigation, see Corfee Decl. ¶¶ 17-18 & Ex. C, defendants have provided no evidence supporting their claim that plaintiffs never sought to settle, see Opp'n at 10-11. Indeed, defendants provide no evidence that they themselves ever made an effort to settle before the court granted in part plaintiffs' second motion for summary judgment. See id.
Defendants also submit a declaration that a former client of plaintiffs' counsel, Ms. Corfee submitted in a prior case in connection with Ms. Corfee's motion to withdraw as counsel in that case. Weiner Decl., ECF No. 115-3; see Opp'n at 8. Defendants claim this declaration is evidence that Ms. Corfee "routinely misrepresents facts and has a history of overbilling clients." Opp'n at 8. The court disagrees and finds the declaration irrelevant to the pending motion for attorney's fees in this case. Defendants' claims about plaintiffs' counsel's intent are entirely speculative and unsupported by the record in this case. At the same time, the court denies plaintiffs' request to sanction defendants for filing the declaration, see Reply at 1-2, but will award plaintiffs the reasonable hours spent preparing their reply brief, including the time spent responding to the declaration, see Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir. 2008) ("In statutory fee cases, federal courts, including our own, have uniformly held that time spent in establishing the entitlement to and amount of the fee is compensable." (quoting In re Nucorp Energy, Inc., 764 F.2d 655, 659-60 (9th Cir. 1985)). The court finds the seven hours requested for Ms. Corfee and the 3.2 hours requested for Zachary Best for litigating the fees motion is reasonable. Corfee Decl. II ¶ 3.
The court concludes attorney Corfee reasonably expended 357.86 hours (the requested 351.76 hours + 7 hours for the fees motion - the court's .9-hour reduction); attorney Best reasonably expended 78.2 hours (the requested 75 hours + 3.2 hours for the fees motion); junior associate Khosrowshahi reasonably expended 44.26 hours (the requested 50.36 hours - the court's 6.1-hour reduction); paralegal Tenieshsa Kennedy reasonably expended 5.49 hours; and paralegal Rebecca Dingler reasonably expended 12.26 hours. See Corfee Decl. Ex. A. The court next determines the reasonable hourly rates.
2. Reasonable Hourly Rates
In determining a reasonable hourly rate for successful civil rights attorneys, courts consider a number of factors, "including the novelty and difficulty of the issues, the skill required to try the case, whether or not the fee is contingent, the experience held by counsel and fee awards in similar cases." Moreno, 534 F.3d at 1114; see also Hiken, 2016 WL 4608147, at *5 (listing similar factors). "While disability access cases are a subset of civil rights practice, the reasonable hourly rate merited in routine disability access cases typically falls below the hourly rate charged in more complicated civil rights cases." Johnson v. Patel, No. 14-2078, 2016 WL 727111, at *3 (E.D. Cal. Feb. 23, 2016).
"The reasonable rate should generally be guided by 'the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.'" Hiken, 2016 WL 4608147, at *5 (quoting Chalmers, 796 F.2d at 1210-11). The relevant community here is the Sacramento Division of the Eastern District of California. The fee applicant bears the burden of showing that the requested rate is "in line with those prevailing in the community." Id. at *6 (quoting Camacho, 523 F.3d at 980). "In general, '[a]ffidavits 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.'" Id. (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)).
Plaintiffs seek hourly rates of $300 for attorney Corfee, $285 for attorney Best, $150 for junior associate Khosrowshahi, $120 for paralegal Kennedy, and $100 for paralegal Dingler. Mot. at 12-13; see Corfee Decl. Ex. A. The fees in this case were contingent upon plaintiffs prevailing. Mot. at 17; Corfee Decl. ¶ 17. Ms. Corfee has over twenty-five years of experience and has specialized in ADA litigation for most of her career, handling approximately 1800 ADA cases. Corfee Decl. ¶ 3. She started the law firm Corfee Stone & Associates. Id. Mr. Best has practiced civil rights litigation for twenty-two years, has worked at the firm for a total of approximately ten years, and has handled approximately 250 ADA cases. Best Decl. ¶¶ 3, 5. Mr. Khosrowshahi graduated from law school in May 2013, worked as a Federal Public Defender, and then worked at Corfee Stone & Associates from September to November 2014. Corfee Decl. ¶ 9. Ms. Kennedy had six years of experience as a paralegal in private practice when she began working on this action. Id. ¶ 7. Ms. Dingler had been employed at the firm for over a year; she also had previously graduated from law school in London, and was a member of the Bar in England, although it is not clear to what extent she practiced law. Id. ¶ 8. Plaintiffs cite several cases from this district to show that $260 to $350 is the generally accepted hourly rate for experienced civil rights attorneys in Sacramento. Mot. at 13 (citing Kalani v. Nat'l Seating & Mobility, Inc., No. 13-00061, 2014 WL 3956669 (E.D. Cal. Aug. 13, 2014); Hall v. City of Fairfield, No. 10-0508, 2014 WL 1286001 (E.D. Cal. Mar. 31, 2014); and Johnson v. Wayside Prop., Inc., No. 13-1610, 2014 WL 6634324 (E.D. Cal. Nov. 21, 2014)).
This case required a substantial amount of time and labor, but did not involve complex or novel legal issues. As for Ms. Corfee, who has extensive experience and founded the law firm, the court finds $300 per hour to be an appropriate rate. See Kalani, 2014 WL 3956669, at *2-3; see also Johnson v. San, No. 15-162, 2015 WL 7188245, at *5 (E.D. Cal. Nov. 16, 2015), report and recommendation adopted, 2016 WL 659791 (Feb. 18, 2016) (awarding founder of law firm with twenty-one years' experience handling disability-related issues a rate of $300 an hour). As for Mr. Best, who is not a partner at the firm but has twenty-two years' experience practicing civil rights litigation, the court finds his rate of $285 per hour is reasonable. See Wayside Prop., Inc., 2014 WL 6634324, at *8; see also Hall, 2014 WL 1286001, at *7. As for Mr. Khosrowshahi, a junior associate with relatively little experience, the court finds a reasonable rate is at the lower end for associates, $150 per hour. See Wayside Prop., Inc., 2014 WL 6634324, at *8 (awarding an associate with less than two years' experience a rate of $150 per hour; finding range of $150 to $175 is the generally accepted hourly rate for associates in Sacramento).
Plaintiffs have not provided information about the prevailing market rates for paralegals in Sacramento. Based on the court's own research, rates awarded for paralegals in this district have ranged from $75 per hour up to $150 per hour. See Hall, 2014 WL 1286001, at *8 (recognizing disagreement among judges and awarding $150 per hour); see also Kalani, 2014 WL 3956669, at *3 (awarding rates of $115 per hour and $85 per hour to paralegals with ten and five years' experience, respectively); Joe Hand Promotions, Inc. v. Albright, No. 11-2260, 2013 WL 4094403, at *3 (E.D. Cal. Aug. 13, 2013) ("[T]he paralegal rate favored in this district is $75 per hour." (quotation marks and citation omitted)). Given Ms. Kennedy's and Ms. Dingler's experience of six years and one year, respectively, and the relatively straightforward nature of this case, the court finds a reasonable hourly rate is $100 for Ms. Kennedy and, on the current record, $85 for Ms. Dingler.
Applying these rates to the hours awarded above, the lodestar in this case is $135,920.10, calculated as follows:
| Attorney/Paralegal | Hours | Rate | Amount |
| Catherine M. Corfee | 357.86 | $300 | $107,358 |
| Zachary Best | 78.2 | $285 | $22,287 |
| Arash Khosrowshahi | 44.26 | $150 | $6,639 |
| Tenieshsa Kennedy | 5.49 | $100 | $549 |
| Rebecca Dingler | 12.26 | $85 | $1,042.10 |
| TOTAL | $137,875.10 |
3. Adjustments to the Lodestar
As stated above, plaintiffs do not seek an upward adjustment or application of a multiplier to the lodestar amount. And for the reasons discussed above, defendants' arguments do not warrant a downward adjustment of the lodestar beyond the reductions already made in determining the reasonable hours and hourly rates. In light of the strong presumption that the lodestar represents a reasonable fee, the court does not adjust the lodestar figure. See Del. Valley Citizens' Council for Clean Air, 478 U.S. at 565.
B. Costs
Plaintiffs also seek $8,590.94 in costs for filing fees, expert fees, process server fees, deposition fees, and online research fees. Mot. at 19; Corfee Decl. ¶¶ 51-55 & Exs. E-I. Defendants do not object to these costs.
Costs generally are awarded to the prevailing party in a civil action as a matter of course unless the court directs otherwise. Fed. R. Civ. P. 54(d). The court must limit an award of costs to those defined in 28 U.S.C. § 1920 unless otherwise provided for by statute. Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 579-80 (9th Cir. 2010). In an action under the ADA, the prevailing party is entitled to recover "a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205; Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002); see Moore v. Cisneros, No. 12-00188, 2012 WL 6523017, at *9 (E.D. Cal. Dec. 13, 2012) (citing Lovell, 303 F.3d at 1058) (finding filing fee, costs of service, and property inspection fee compensable), adopted in full by Order, Jan. 15, 2013, No. 12-00188. Here, plaintiffs' fees and costs of service are compensable and should be awarded.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS IN PART plaintiffs' motion. Defendants are directed to pay plaintiffs $137,875.10 in attorney's fees and $8,590.94 in costs.
IT IS SO ORDERED. DATED: September 14, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE