Opinion
H042848 H043393
06-20-2018
ALMA CLARISA HERNANDEZ, Plaintiff and Respondent, v. STARBUCKS COFFEE COMPANY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-12-CV-223913)
Plaintiff Alma Clarisa Hernandez successfully sued defendant Starbucks Corporation (Starbucks) for disability discrimination under the Unruh Civil Rights Act (Civ. Code § 51 , (the Act)) based on the presence of accessibility barriers at a San Jose Starbucks location. Following a bench trial, the trial court awarded plaintiff $4,000 in statutory damages and ordered Starbucks to remove certain accessibility barriers. The court also awarded plaintiff costs and $158,880.50 in attorney fees. Starbucks separately appealed from the judgment and the post-judgment order awarding costs and fees. This court ordered the two appeals considered together for the purposes of oral argument and disposition.
All further statutory references are to the Civil Code unless otherwise indicated.
For the reasons set forth below, we modify the injunctive portion of the judgment and affirm it as modified and reverse the order awarding attorney fees and costs with directions.
I. BACKGROUND
A. Factual Background
Starbucks owns and operates a store located at 2707 McKee Road in San Jose (the Store), which was constructed in 1997. Starbucks's expert on accessibility described the Store as "very, very small," "almost like a take-out store."
Plaintiff uses a manually operated wheelchair for mobility. She visited the Store on December 1, 2011. At that time, she lived about five minutes away from the Store, which she had visited on prior occasions as well. On December 1, 2011, merchandise display baskets in front of and on the cashier counter prevented plaintiff from paying for and reaching her purchases. Someone else had to help her complete her transaction. Also on December 1, 2011, plaintiff found that when she "tried to sit down at the disable[d] table," which was located adjacent to the Store entrance, people were in her way and her wheelchair was in people's way. That experience made her feel uncomfortable and unwelcome. Plaintiff tried to use the Store bathroom on December 1, 2011, but she "couldn't open the door because the door[ was] very hard." Another customer opened the restroom door for her. Plaintiff testified that the visit left her feeling "rejected, . . . embarrassed and humiliated."
Starbucks repeatedly asserts that plaintiff visited the Store one time. That assertion is contradicted by the record. Below, the parties stipulated that plaintiff "visited the Starbucks Store on December 1, 2011" and that she "ha[d] visited the Starbucks Store on other occasions prior to her December 1, 2011 visit." Moreover, plaintiff's testimony makes clear she visited the Store more than once.
Plaintiff testified that she sent a letter to the Store explaining her discomfort. A copy of that letter, dated December 6, 2011, was admitted into evidence. In it, plaintiff wrote: "I came to your store and could not get to the counter because there is not enough room for my wheelchair. I could not find a table that had leg space for me and could not open the restroom door because it was blocked by boxes. Please move the shelves from the middle to give me room to get to the counter, remove items that are piled up on the cashier counter, put a table that has room for a wheelchair where I can get to it and use it and move the boxes away from the restroom door. I will wait for 30 days and if you don't do it I will file a lawsuit to have you remove these barriers and for damages, attorneys fees and costs."
At the time of the February 2015 trial, plaintiff lived in Hanford, California, approximately 176 miles from the Store. Plaintiff testified that she moved to Hanford for a one-year employment contract and planned to move back to her prior San Jose residence in April 2015.
The parties agree that Hanford, California, is located about 176 miles from the Store, but cite no record evidence establishing that fact. On our own motion, we take judicial notice of the fact that the distance between the Store and Hanover is approximately 176 miles. (Evid. Code, § 452, subd. (h); In re Nicole H. (2016) 244 Cal.App.4th 1150, 1153.)
Private Investigator Robert Ferris testified for plaintiff that he visited the Store three times in April 2014, on the 24, 25, and 26. During those visits, Ferris took photographs of the Store. Pictures from each of Ferris's visits show three display baskets positioned along the counter and immediately across the aisle from the accessible table. On the morning of April 25, 2014, Ferris observed and photographed a cone and a large outdoor umbrella in the space adjacent to the bathroom door.
Logan Hopper testified for the plaintiff as an access expert. Hopper testified that he performed a formal inspection of the Store on April 24, 2014, during which he took measurements. Plaintiff's counsel and defense counsel were present for that inspection. At that time, Hopper measured the width of the accessible path to the bathroom and found that, between the drink counter and a nearby customer seating table, it was only 28 inches wide. At another point, a trashcan narrowed the accessible path to the bathroom to 29 inches wide. Hopper testified that no display baskets were present in the Store during the announced inspection, nor was anything obstructing the space adjacent to the restroom door. Hopper testified that a trashcan in the bathroom resulted in just 37 inches of clearance in front of the toilet. Hopper also measured the operating pressure of the doors on April 24, 2014. The restroom door had an operating pressure of 18 pounds; the two entrance doors had operating pressures of 14 to 15 pounds and five to seven pounds.
Hopper made two unannounced visits to the Store on May 4, 2014 and May 13, 2014. During both of those visits, display baskets sat next to the counter, across the aisle from the accessible table. Hopper also observed boxes in the space adjacent to the restroom door on both of his May 2014 visits. He estimated that there was 10 to 12 inches of clear space between the door and the boxes on those occasions.
Tyche Carveiro, Store manager between 2011 and 2013, testified that when he first started working at the Store, the space next to the restroom door was used for storing empty pastry carts.
Kim Robert Blackseth testified for Starbucks as an expert on accessibility. Blackseth testified that he visited the Store multiple times to conduct inspections and take measurements. The display baskets were present during just one of those visits. Blackseth testified that he measured the accessible route to the restroom and it was at least 36 inches wide in all places. He further testified that there was a least 18 inches of strike-side clearance on the pull side of the restroom door. "Strike-side clearance" refers to the clear floor space adjacent to the pull side of a swinging door, which is necessary to allow a person in a wheelchair to open a door without it hitting into his or her chair. In the Store restroom, Blackseth measured 51 inches from the front of the toilet to the wall. He did not recall where the restroom trashcan was located, or even if one was present, when he took that measurement.
Blackseth explained that door operating pressure must be maintained over time because "[t]he more you use [doors], the more they tend to go out of the pressure." He confirmed that door operating pressure can change over the course of just a few days because of differential air pressure and use. Blackseth further testified that "if the door closer is older or worn, it's almost impossible to get [the door operating pressure] into compliance." Blackseth never inspected the Store's restroom door closer. He testified on cross-examination that "at some point" he measured the restroom door operating pressure, but he did not recall the measurement or have it written down anywhere. Blackseth testified that he received a work order from Starbucks representing that the restroom door operating pressure had been adjusted to below five pounds; he relied on that representation in declaring, in September 2014, that the restroom door required less than five pounds of pressure to operate.
Plaintiff called Hopper as a rebuttal witness. Over Starbucks's objection, Hopper testified that he had visited the Store that day, February 11, 2015, and the operating pressure on the restroom door measured 17 pounds. Hopper further testified that he had examined the door closer and, "best-case scenario . . . for that type of closer," the door operating pressure could be adjusted by "a few pounds." Hopper explained that his firm had been the architects of record on many architectural barrier removal projects and, in the course of those projects, had been required to reduce door operating pressures to five pounds. "[T]he vast majority" of door closers he encountered during those projects had to be replaced because they "couldn't be adjusted down to five pounds. And the closers varied from really old closers where it was impossible, but also, the closers that were similar to the vintage of closer that [he] saw at Starbucks." Hopper opined that "it would [have been] extremely unlikely and almost impossible" to adjust the Store's restroom door operating pressure to five pounds in September 2014.
Starbucks objected below to this testimony and maintains on appeal that the court erred in admitting it.
B. Procedural Background
On May 7, 2012, plaintiff sued Starbucks and Capitol Square Partners, the owner of the real property in and on which the Store is located, alleging disability discrimination. Plaintiff filed a first amended complaint on June 20, 2013, alleging violations of the Act (§ 51) and denial of full and equal access to public facilities in violation of Part 5.5 of the Health and Safety Code and/or section 4450 of the Government Code. Plaintiff sought injunctive and declaratory relief, statutory damages under the Act, and attorney fees and costs.
In June 2014, plaintiff moved for summary judgment. The trial court denied that motion in September 2014.
Plaintiff settled her case with defendant Capitol Square Partners for allegations related to the Store's parking and exterior common areas on February 4, 2015. The case against Starbucks proceeded to a three-day bench trial in February 2015.
The trial court issued its statement of decision and its judgment on June 30, 2015. The court concluded that plaintiff personally encountered a number of Act violations in the Store that made her feel unwelcome and awarded her $4,000 in statutory damages under section 52, subdivision (a). The court further found violations of (1) the state and federal regulations requiring an accessible route with a minimum clear width of 36 inches, (2) the state and federal regulations requiring a minimum of 18 inches of clear floor space adjacent to the pull side of a swinging door, (3) the state regulation requiring a minimum of 48 inches of clear space in front of a toilet, and (4) the federal regulation requiring that the force required to open an interior door not exceed five pounds. The court ordered the following mandatory injunctive relief: "(a) Starbucks shall provide an open and accessible route of travel throughout the public areas of its Store at a minimum of 36 inches wide. [¶] (b) Starbucks shall ensure that the accessible routes of travel are routinely maintained free and clear of items placed within the accessible routes by Starbucks and/or its invitees. [¶] (c) Starbucks shall provide and maintain a clear floor space of 30 inches by 48 inches in front of its cashier counter. [¶] (d) Starbucks shall provide access to a dedicated accessible table and seating area with clear floor space of 65 inches measured from the edge of the table to the first obstruction. [¶] (e) Starbucks shall provide access to the restroom by ensuring that a clear floor space of 18 inches to the right of the door and 60 inches deep remains clear of obstructions. [¶] (f) Starbucks shall ensure that trash receptacles or other containers located in the restroom do not interfere with the clear floor space required for disabled access. [¶] (g) The doors at the entrance to the Store and at the entrance to the Store's restroom shall not exceed 5 pounds of operating pressure and shall be maintained such that they do not exceed 5 pounds of operating pressure." Starbucks timely appealed from the judgment on August 24, 2015.
Plaintiff sought $8,260.39 in costs. Starbucks moved to tax costs, arguing that $7,175.39 of the claimed costs were not reasonable, necessary or proper.
Plaintiff moved for attorney fees under section 52, subdivision (a), in the amount of $170,880.50. Starbucks argued that plaintiff was entitled to just $30,678.93 in attorney fees after reductions were made for the use of block billing, vague billing entries, excessive intraoffice conferencing, clerical work, time spent on the unsuccessful summary judgment motion, fees attributable to Capitol Square Partners, and plaintiff's limited success.
In an order filed on December 1, 2015, the trial court granted in part and denied in part Starbucks's motion to tax costs and awarded plaintiff $158,880.50 in attorney fees. Starbucks timely appealed that order.
II. JUDGMENT
A. The Act
The Act broadly outlaws arbitrary discrimination in public accommodations, including discrimination on the basis of disability. (Osborne v. Yasmeh (2016) 1 Cal.App.5th 1118, 1126 (Osborne); § 51, subd. (b).) Violations of the Americans with Disabilities Act of 1990 (ADA) 42 U.S.C. § 12101 et seq., are per se violations of the Act as well. (§ 51, subd. (f).) A person has standing under the Act when he or she "presents himself or herself to a business establishment, and is personally discriminated against based on one of the characteristics articulated in section 51 . . . ." (Osborne, supra, at pp.1133-1134.)
Section 52 provides for minimum statutory damages of $4,000 for "each and every" Act violation. Such statutory damages are available for violations of construction-related accessibility standards where "the plaintiff personally encountered the violation on a particular occasion" (§ 55.56, subd. (b)) and "the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation." (§ 55.56, subd. (c).) For purposes of section 55.56, construction-related accessibility standards include the California Building Standards Code (Title 24 of the California Code of Regulations, (CBSC)), the ADA, and the ADA Accessibility Guidelines (28 C.F.R. 36, Appx. A; (ADAAG)). (§ 55.52, subd. (a)(6).) The parties stipulated below that the Store is a public accommodation subject to the accessibility requirements set forth in the 1991 ADAAG and the 1995 CBSC.
"Injunctive relief is also available [for Act violations] and may extend to all persons similarly situated to the plaintiff." (Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1408.)
B. Statutory Damages Award
Starbucks contends plaintiff lacked standing to seek statutory damages under the Act because there is insufficient evidence that she personally encountered any ADA violations during her December 1, 2011 visit. While Starbucks couches its challenge in terms of standing, in fact, it is challenging the sufficiency of the evidence supporting the court's award of statutory damages. Accordingly, the question on appeal is whether there is substantial evidence supporting the finding that plaintiff personally encountered one or more violations of construction-related accessibility standards and experienced difficulty, discomfort, or embarrassment as a result. (§ 55.56.) There is.
1. Factual Background
The Statement of Decision sets forth various "conditions found by [plaintiff] during the Visit" and concludes those conditions "constitute substantial evidence entitling her to a finding that Starbucks violated the ADA, and therefore the California Unruh Civil Rights Act." (The Statement of Decision does not specify which of the ADAAG Starbucks violated in creating the conditions plaintiff encountered during her December 2011 visit.) The court identified the following "conditions which prevented [plaintiff] full and equal access to the Store": (1) "display baskets and merchandise racks located on the path of travel between the entrance and the ordering counter, which reduced the clear width of travel for [plaintiff] to less than 36 inches, causing [plaintiff] difficulty in getting to the ordering counter"; (2) "merchandise was stacked on the counter . . . within the required 36[-]inch clear width of the counter"; (3) when plaintiff was seated at the Store's only accessible table, which was located at the entrance door, her "wheelchair blocked a portion of the entryway, placing her within the landing of the interior side of the entrance"; (4) "the restroom . . . door was too heavy for [plaintiff] to open"; and (5) "the hallway area next to the strike side of the restroom door was regularly used for storage, which left virtually no space for [plaintiff] to maneuver to open the door." The trial court further found that plaintiff's experience made her feel unwelcome and awarded her $4,000 in statutory damages under section 52, subdivision (a).
2. Standard of Review
In reviewing a sufficiency of the evidence challenge, we view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence—meaning evidence that is reasonable, credible, and of solid value—to support the judgment. (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398.) "The focus is on the quality, rather than the quantity, of the evidence. . . . Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.] Expert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. Opinion testimony which is conjectural or speculative 'cannot rise to the dignity of substantial evidence.' " (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).)
"[T]he credibility of witnesses is generally a matter for the trier of fact to resolve. Accordingly, the testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears. [Citation.] Similarly, the testimony of a witness in derogation of the judgment may not be credited on appeal simply because it contradicts the plaintiff's evidence, regardless how 'overwhelming' it is claimed to be. [Citation.] . . . . [T]he testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck).)
3. Analysis
Starbucks contends plaintiff's own testimony was insufficient to establish that she personally encountered any violations of construction-related accessibility standards because she "did not take measurements or photographs of the alleged barriers she encountered at the Store." We reject Starbucks's assertion that measurements or photographs are required to establish an Act violation, whether based on the ADAAG or the CBSC.
Starbucks relies on Doran v. 7-Eleven, Inc. (9th Cir. 2008) 524 F.3d 1034, 1048 (Doran), which held that plaintiff's "testimony that he scraped his knuckles on the edge of the aisles while shopping . . . , unsupported by any measurements, [was] insufficient to demonstrate that 7-Eleven's aisles do not comply with the thirty-six-inch clearance that the Accessibility Guidelines mandate." However, the Ninth Circuit has since explained that Doran does not prohibit "any and all claims based on personal observation in ADA cases." (Strong v. Valdez Fine Foods (9th Cir. 2013) 724 F.3d 1042, 1046 (Strong).) Instead, Strong read Doran as simply rejecting the plaintiff's "testimony as insufficiently probative of the width of the aisles [since p]laintiff could, after all, have scraped his knuckles on the side of an ADA-compliant aisle when he drove his wheelchair too close to one side or the other." (Ibid.) Noting the "common[] underst[anding] that lay witnesses may estimate size, weight, distance, speed and time even when those quantities could be measured precisely" and the likelihood that "someone . . . who daily navigates the world in a wheelchair[] would be attuned to variations in the slope and spacing of his environment," the Strong court concluded that the plaintiff "could support his case based on his own personal experience with the barriers" "[e]ven without precise measurements . . . ." (Id. at pp. 1045-1046.) That reasoning, which we find persuasive, compels the conclusion that a plaintiff likewise can support an Act claim alleging violations of construction-related accessibility standards set forth in the CBSC based on his or her personal experience alone, without measurements.
Starbucks also criticizes plaintiff's testimony as too vague and conclusory to establish any violations. Substantial evidence supports the trial court's implicit finding that plaintiff encountered a violation of the ADA Guideline requiring a minimum of 18 inches of clear floor space adjacent to the pull side of a swinging door for a wheelchair to maneuver. (28 C.F.R. pt. 36, App. D, § 4.13.6 (1991).) As noted above, this space, sometimes referred to as "strike-side" clearance, is necessary to allow a person in a wheelchair to open a door. Plaintiff did not testify that anything obstructed the space adjacent to the restroom door. Rather, she said the door was too hard to open and another customer had to open it for her. However, her letter stated that the "restroom door . . . was blocked by boxes." Hopper, Ferris, and Carveiro testified about the presence of boxes and other items in the area adjacent to the restroom door. The trial court reasonably could have inferred from the evidence that plaintiff was referring to boxes obstructing the "strike-side" clearance beside the restroom door in her letter. The trial court reasonably could have reconciled plaintiff's letter and trial testimony by concluding that her memory was better at the time she wrote the letter and she forgot about the boxes adjacent to the restroom door at the time of trial. (People v. Alonzo (1958) 158 Cal.App.2d 45, 47 ["It is the province of the trier of the facts to pass upon the credibility of the witnesses and determine the weight that should be given to their testimony; also, to resolve any conflicts and inconsistencies in their testimony, and this rule applies to conflicts and inconsistencies in the testimony of a particular witness"].) Because a single Act violation is sufficient to support the $4,000 statutory damage award (§ 52, subd. (a)), we need not consider whether the trial court's other findings of personally-encountered ADA violations are supported by substantial evidence.
C. Injunction
1. Standing
Starbucks contends plaintiff lacked standing to sue for injunctive relief under the Act because, at the time of trial, she lived in Hanford, California, 176 miles from the Store. In Starbucks's view, because plaintiff's Act claim was based in part alleged violations of the ADA, plaintiff was required to establish standing to pursue injunctive relief under the ADA. Federal courts have held that a plaintiff "must demonstrate a 'real and immediate threat of repeated injury' in the future" to establish standing to pursue injunctive relief under the ADA. (Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2011) 631 F.3d 939, 946 (Chapman I).) According to Starbucks, plaintiff cannot make the requisite showing given her move far from the Store. Plaintiff does not disagree that federal standing requirements apply, but maintains she demonstrated a likelihood of future injury sufficient to establish standing.
The premise of Starbucks's challenge to plaintiff's standing to pursue injunctive relief is flawed. As we explain below, a plaintiff asserting an Act claim in California state court is not required to establish standing under Article III of the United States Constitution even if his or her claim is based on violations of the ADA. Rather, as noted above, a person has standing under the Act when he or she "presents himself or herself to a business establishment, and is personally discriminated against based on one of the characteristics articulated in section 51 . . . ." (Osborne, supra, 1 Cal.App.5th at pp. 1133-1134.)
Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." (U.S. Const., art. III, § 2.) That "case-or-controversy limitation on federal judicial authority . . . underpins [federal] standing . . . jurisprudence . . . . " (Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000) 528 U.S. 167, 180 (Friends of the Earth).) That is, no "Case" or "Controversy" exists if the plaintiff lacks standing to challenge the defendant's alleged misconduct. (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560.)
"[T]o satisfy Article III's standing requirements, a plaintiff must show (1) [he or she] has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." (Friends of the Earth, supra, 528 U.S. at pp. 180-181.) To have standing "to seek forward-looking, injunctive relief, [a plaintiff] must show that [he or she] face[s] an imminent threat of future injury." (Gratz v. Bollinger (2003) 539 U.S. 244, 284.) Therefore, a plaintiff pursuing injunctive relief under the ADA in federal court "must demonstrate a 'real and immediate threat of repeated injury' in the future" to establish Article III standing. (Chapman I, supra, 631 F.3d at p. 946; Brother v. Tiger Partner, LLC (M.D. Fla. 2004) 331 F.Supp.2d 1368, 1371 ["immediate danger of future injury [is] (a requirement of Article III standing)"].)
Here, plaintiff asserted a state law claim in state court. "[T]he constraints of Article III do not apply to state courts . . . ." (ASARCO Inc. v. Kadish (1989) 490 U.S. 605, 617 ["state courts are not bound to adhere to federal standing requirements"].) The fact that the Act incorporates the ADA, a federal statute, by reference does not change that fact. In sum, the immediate danger of future injury requirement is not an element of an ADA claim, as Starbucks suggests, but a requirement of Article III standing that has no bearing on this proceeding. We therefore reject Starbucks's contention that plaintiff lacked standing to pursue injective relief.
2. Sufficiency of the Evidence of ADA and Act Violations
Starbucks contends the trial court's findings that it violated the ADAAG and the CBSC are unsupported by substantial evidence. We disagree.
a. Accessible Path of Travel
The 1991 ADAAG require the minimum clear width of an accessible route to be 36 inches, except at doors, which must have a minimum clear opening of 32 inches. (28 C.F.R. pt. 36, App. D, §§ 4.3.3 and 4.13.5 (1991).) The 1995 CBSC likewise requires a minimum clear width of "32 inches (813 mm) at a point and 36 inches (914 mm) continuously." (Cal. Code Regs., tit. 24, § 1118B.1 (1995).)
The trial court found that display baskets, merchandise racks, and a trashcan reduced the clear width of the accessible route through the Store to 28 or 29 inches at several points. The court further found that the clear width of a portion of the accessible route was reduced to just 12 inches when a wheelchair is seated at the accessible table. Given those findings, the court concluded that Starbucks failed to provide and maintain the ADA-mandated 36-inch path of travel in the Store. Starbucks challenges the trial court's findings as unsupported by substantial evidence. That challenge is meritless.
Plaintiff's access expert, Hopper, testified that during his April 24, 2014 visit, a trashcan obstructed the accessible path to the bathroom, causing it to narrow to 29 inches. Hopper explained that he personally measured the clearance to be 29 inches. Hopper further testified that he measured the space between the drink counter and a nearby customer seating table to be 28 inches.
Starbucks asserts that Hopper's testimony does not constitute substantial evidence because it is contradicted by photographs taken by Private Investigator Ferris. Ferris testified that the Store's floor tiles are 12 inch-by-12 inch squares. Starbucks contends that photographs Ferris took on his April 2014 visits show a clear path that is at least three tiles, or 36 inches, wide throughout the store. Starbucks says the photographs prove Hopper's measurements are unreliable. In a related argument, Starbucks says Hopper's opinion as to the width of the accessible path is not supported by record evidence because Hopper relied on Ferris's photographs, which contradict the opinion. These arguments fail for three reasons.
First, we disagree with Starbucks's assertion that Ferris's photographs clearly show a 36-inch wide accessible route through the Store. Plaintiff's exhibits 3-f and 5-b, which are photographs Ferris took on April 24, 2014 and April 26, 2014, respectively, appear to show less than three tiles of open floor space between the drink counter and customer seating. Ferris's testimony that the clear path was only two-and-a-half tiles wide at some places confirms our interpretation of the photographs.
Second, even if Ferris had documented a 36-inch wide accessible route during his visits, that evidence would not necessarily contradict Hopper's testimony that he measured a narrower accessible route during his separate visit. The trial court credited Hopper's testimony, including as to the measurements he took. Because his testimony is neither "physically impossible [n]or inherently improbable," we may not reject it on appeal. (Beck, supra, 44 Cal.App.4th at p. 1204.)
While both men visited the Store on April 24, 2014, they apparently were there at different times as Hopper testified that there were no display baskets present on his visit that day, while Ferris's photographs from April 24, 2014 show the display baskets in place.
Third, Hopper's testimony that the accessible path of travel through the Store measured only 28 inches and 29 inches in two locations was not based on Ferris's photographs. Hopper explicitly testified that he personally measured those clearance distances.
Starbucks also challenges the court's finding that the presence of a wheelchair at the accessible table would reduce a portion of the accessible route to 12 inches as unsupported by the evidence. We need not address that argument because Hopper's testimony that the accessible path of travel through the Store measured only 28 inches and 29 inches in two locations constitutes substantial evidence supporting the trial court's finding that Starbucks failed to comply with the 36-inch path requirement set forth in both the 1991 ADAAG and the 1995 CBSC.
b. Maneuvering Clearance at Restroom Door
Both the 1991 ADAAG and the 1995 CBSC require a minimum of 18 inches of clear floor space, or "strike-side" clearance, adjacent to the pull side of a swinging door for a wheelchair to maneuver. (28 C.F.R. pt. 36, App. D, § 4.13.6 (1991); Cal. Code Regs., tit. 24, §1004.9.2.1.1a (1995).) The trial court concluded Starbucks failed to comply with the 18-inch strike-side clearance requirement, finding that "[s]torage adjacent to the [restroom] doorway almost fully obstructs the 18 inches of clear floor space, and the overwhelming evidence—including the testimony of Starbucks's employees—establishes that this area is regularly used for storage, and that such use is not isolated or temporary."
Starbucks says there is insufficient evidence to support the court's finding, pointing to Hopper and Blackseth's testimony that nothing was stored adjacent to the restroom door at the time of their official inspections and the fact that plaintiff did not testify about boxes or other obstructions adjacent to the bathroom door. But Starbucks ignores Ferris's testimony and photograph showing a cone and an umbrella were stored in that area during his April 25, 2014 visit; Hopper's testimony that boxes were stored in that area during his two May 2014 visits; the Store manager's testimony and photographs showing that pastry carts were stored in that area in 2011; and plaintiff's letter complaining of boxes blocking the restroom door. Hopper estimated that there was 10 to 12 inches of clear space between the door and the boxes on his May 2014 visits. The foregoing evidence plainly is sufficient to support the trial court's finding that Starbucks failed to maintain 18 inches of clear floor space adjacent to restroom door, instead frequently using the space for storage.
Alternatively, Starbucks argues the stored items constitute "temporary" barriers that do not violate the ADA, citing 28 C.F.R. § 36.211. Part (a) of that regulation "requires that once a facility is brought into compliance with the relevant [ADA] standards, accessibility be maintained so that persons with disabilities may continue to access and use the facility." (Kalani v. Starbucks Corp. (N.D. Cal. 2015) 81 F.Supp.3d 876, 885 (Kalani), citing 28 C.F.R. § 36.211(a).) "Section 36.211(b) provides a narrow exception" to the requirement that public accommodations maintain accessibility for " 'isolated or temporary interruptions in service or access due to maintenance or repairs.' " (Kalani, supra, at p. 885, quoting 28 C.F.R. § 36.211(b); Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2015) 779 F.3d 1001, 1006 (Chapman II).) The Department of Justice has explained that " 'a temporary interruption that blocks an accessible route, such as restocking of shelves,' is permitted by [28 C.F.R.] § 36.211(b)." (Chapman II, supra, at p. 1006, quoting 75 Fed.Reg. 56,236, 56,270 (Sept. 15, 2010).)
Substantial evidence supports the court's conclusion that the obstructions adjacent to the restroom door were not "temporary" within the meaning of 28 C.F.R. § 36.211(b). Ferris and Hopper testified to the presence of such obstructions on three separate unannounced visits in April and May of 2014; the area was clear during Hopper and Blackseth's formal inspections and during two of Ferris's unannounced visits. It was reasonable for the court to infer from that evidence that items regularly are stored in the area adjacent to the restroom door when no formal inspection is scheduled. (Chapman II, supra, 779 F.3d at pp. 1008-1010 [affirming grant of summary judgment to plaintiff on ADA claim regarding failure to maintain readily-accessible aisles, concluding that barriers were not "temporary" within the meaning of § 36.211(b) where plaintiff encountered them on 11 separate visits even though experts did not encounter them during two inspections].) That reasonable inference constitutes substantial evidence. (Roddenberry, supra, 44 Cal.App.4th at p. 651.)
c. Clearance in Restroom
The 1995 CBSC requires a minimum of 48 inches of clear space in front of the toilet. (Cal. Code Regs., tit. 24, § 1115B.7.2 (1995).) The 1991 ADAAG do not have an analogous front-of-toilet clearance requirement, instead requiring 56 inches of clearance measured from the wall behind the toilet. (28 C.F.R. pt. 36, App. D, § 4.16.2 (1991).) The trial court found that a trashcan obstructed the space in front of the toilet in the Store bathroom, such that Starbucks failed to comply with the state requirement of 48 inches of clear space. Starbucks argues there is insufficient evidence to support an Act violation based on the 1995 CBSC toilet clearance requirement because there is no evidence of intentional discrimination. Plaintiff responds that Starbucks cannot raise the issue of intentional discrimination for the first time on appeal and that, regardless, the record supports a finding of intentional discrimination.
As both parties acknowledge, "to establish a violation of the [Act] independent of a claim under the [ADA]," a plaintiff "must 'plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.' " (Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d 414, 425, quoting Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668.) In the context of the Act, intentional discrimination means " 'willful, affirmative misconduct.' " (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 853.)
We reject plaintiff's argument that Starbucks's challenge is not cognizable on appeal. "Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule." (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17.) Plaintiff says she "never addressed the issue of intentional discrimination at trial because Starbucks did not raise it." But, as the plaintiff, it was her burden at trial to prove each element of her claims. Intentional discrimination is an element of an Act claim that is not premised on an ADA violation.
Plaintiff argues that Blackseth's testimony that "there was no trashcan in the restroom that he could recall . . . strongly suggests that . . . Starbucks knew the trashcan obstructed the clear floor space and moved it only during inspections to avoid liability, returning it thereafter. Thus, Starbucks's placement of the trashcan on the restroom floor represents intentional, even wanton, discrimination and supports the trial court's position." That theory is disproved by the fact that the trashcan was present during Hopper's formal, announced inspection. We agree with Starbucks that substantial evidence does not support a finding that the placement of the restroom trashcan was an act of intentional discrimination against individuals with mobility disabilities requiring the use of a wheelchair. Accordingly, the court's finding that Starbucks violated the Act by failing to provide a minimum of 48 inches of clear space in front of the toilet is not supported by sufficient evidence.
3. Scope of the Injunction
The 1991 ADAAG requires minimum clear floor space of 30 inches by 48 inches to accommodate a wheelchair (28 C.F.R. pt. 36, App. D, § 4.2.4.1 (1991)) and that the force required to open an interior door not exceed five pounds (id. § 4.13.11). The trial court effectively enjoined Starbucks to comply with those ADA Guidelines, ordering it to "provide and maintain a clear floor space of 30 inches by 48 inches in front of its cashier counter" and that "[t]he doors at the entrance to the Store and at the entrance to the Store's restroom shall not exceed 5 pounds of operating pressure and shall be maintained such that they do not exceed 5 pounds of operating pressure." Starbucks contends the trial court erred because it found no existing violations of those particular regulations.
a. Legal Principles
" 'A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.' " (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 800 (Grail).) Section 3422 allows the court to grant a permanent injunction "to prevent the breach of an obligation existing in favor of the applicant: [¶] 1. Where pecuniary compensation would not afford adequate relief; [¶] 2. Where it would be extremely difficult to ascertain the amount of compensation [that] would afford adequate relief; [¶] 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, [¶] 4. Where the obligation arises from a trust."
"An injunction properly issues only where the right to be protected is clear, injury is impending and so immediately likely as only to be avoided by issuance of the injunction. [Citation.] A corollary of this rule is that a change in circumstances which renders injunctive relief unnecessary justifies denial of the remedy. (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 184.) An injunction should not issue as a remedy for past acts which are not likely to recur." (East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1126.)
" 'The grant or denial of a permanent injunction rests within the trial court's sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion.' [Citations.] The burden is on the party challenging the ruling to demonstrate such abuse. [Citation.]." (Grail, supra, 225 Cal.App.4th at p. 801.)
b. The Trial Court Abused its Discretion by Ordering Injunctive Relief Regarding the Ground Clearance at the Cashier Counter
The trial court made no finding that Starbucks failed to provide and maintain a clear floor space of 30 inches by 48 inches in front of its cashier counter as required by section 4.2.4.1 of the 1991 ADAAG. Plaintiff says "the trial court discussed this issue when addressing the conditions encountered by [plaintiff]." Not so; the portion of the statement of decision to which plaintiff directs us makes no mention of section 4.2.4.1 of the 1991 ADAAG or the 30-inch-by-48-inch clear floor space requirement. Instead, it addresses the 36-inch clear width requirement for an accessible path and the presence of merchandise on top of the counter. The lack of any finding that Starbucks violated section 4.2.4.1 of the 1991 ADAAG indicates that an injunction is not required to prevent it from breaching the obligation that regulation imposes, such that injunctive relief was improper under section 3422.
c. The Trial Court Did Not Abuse its Discretion by Ordering Injunctive Relief Regarding the Door Operating Pressure
The trial court found that "both the entrance doors and the restroom door required, at some point, in excess of 5 pounds of operational pressure." In view of that one-time violation, the court concluded that it did not need to determine whether the doors were currently in compliance.
Starbucks faults the trial court for relying on Hopper's rebuttal testimony in issuing injunctive relief regarding the operational pressure of the doors, saying the court abused its discretion in permitting Hopper to testify about his post-discovery site inspection conducted during the trial. But the trial court did not rely on Hopper's rebuttal testimony that the Store's restroom door operating pressure remained elevated in issuing injunctive relief; it relied only on the evidence of past violations. Therefore, we need not decide whether the trial court erred in admitting the rebuttal testimony.
Evidence that the Store's door operating pressures violated the ADAAG in the past and that door operating pressure must be regularly adjusted support the trial court's implied finding that excessive door operating pressures are likely to recur in the future. Accordingly, the trial court did not abuse its discretion by ordering Starbucks to maintain proper door operating pressures.
III. ATTORNEY FEE AND COSTS ORDER
Starbucks contends the trial court made a number of errors in ruling on its motion to tax costs and on plaintiff's motion for attorney fees.
A. Costs
"Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc., § 1032, subd. (b).) "Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (Id., § 1033.5, subd. (c)(2).) Items allowable as costs include filing fees (id., § 1033.5, subd. (a)(1)) and "[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, . . . if they were reasonably helpful to aid the trier of fact" (id., § 1033.5, subd. (a)(13)). " 'Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.' " (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576.)
Starbucks argues that the trial court should have disallowed $530 in filing fees associated with plaintiff's unsuccessful motion for summary judgment, which Starbucks argues was not reasonably necessary because the existence of disputed facts was obvious. But the trial court disagreed, finding the motion and associated costs to be reasonable. Starbucks has not shown the court's judgment to be clearly wrong.
Starbucks contends the court erred in awarding plaintiff $473.20 in costs for oversized copies and scans of exhibits because she failed to establish that they were used at trial. Plaintiff responds that the copies and scans were used at trial, as she represented in her memorandum of costs. Photocopies and electronic presentation of exhibits that were reasonably helpful to aid the trier of fact are statutorily allowable costs. (Code Civ. Proc., § 1033.5, subd. (a)(13)). Because " 'the items [at issue] appear [on their face] to be proper charges[,] the verified memorandum is prima facie evidence that the costs . . . therein listed were necessarily incurred . . . [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].' " (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Starbucks has not even attempted to carry that burden. Under the circumstances, we cannot find that the court abused its discretion in allowing the $473.20 in costs for oversized copies and scans of exhibits to be charged to Starbucks.
B. Attorney Fees
1. Governing Legal Principles and Standard of Review
Violators of the Act are liable for "attorney's fees that may be determined by the court." (§ 52, subd. (a).) "[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate." (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) " 'Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative "multiplier" to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.' " (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 489 (Laffitte).)
We review the attorney fee order for an abuse of discretion. (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) Under that standard of review, we ask whether the ruling falls outside the bounds of reason. (Ibid.) As the appellant, Starbucks bears the burden on appeal of proving that the court abused its discretion. (Ibid.)
2. Starbucks Does Not Establish That the Court Failed to Exercise its Discretion as to Whether to Adjust the Lodestar Downward
Starbucks contends the trial court failed to exercise its discretion as to whether a downward adjustment of the lodestar was appropriate, such that remand is required. Starbucks fails to carry its burden to show error.
The trial court's order states "no multiplier adjustment is appropriate here. Therefore, the maximum award to which plaintiff would be entitled is the amount based on the billing statements." Apparently based on that language, Starbucks argues "[t]he court found only that no upward adjustment was appropriate, but did not make a finding regarding a downward adjustment." But the phrase "multiplier adjustment" does not refer only to an upward adjustment. As noted above, our own Supreme Court has described the lodestar adjustment phase of the fee setting process as involving the application of " 'a positive or negative "multiplier" . . . .' " (Laffitte, supra, 1 Cal.5th at p. 489.) Starbucks fails to show that the court was not referring to both positive and negative multipliers when it concluded that no multiplier adjustment was appropriate.
To the extent Starbucks is faulting the court for failing to discuss the relevant factors or explain its reasoning, that argument likewise fails. Trial courts are not required "to explain their decisions on all motions for attorney fees and costs, . . . [and] we will not presume error based on such an omission. . . . In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors." (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67 (Gorman).)
3. Starbucks Fails to Establish that the Court Abused its Discretion in Failing to Reduce the Lodestar Based on Plaintiff's Limited Success
As noted above, the lodestar may be adjusted up or down based on the results the prevailing party obtained in the litigation. A plaintiff's limited success may support a downward adjustment. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989.) Starbucks contends the trial court abused its discretion by refusing to reduce the attorney fee award based on plaintiff's limited success. According to Starbucks, plaintiff prevailed on just two of the 32 accessibility claims asserted in her first amended complaint—"interior routes of travel" and "restroom blocked by movable trash container"—making her victory quite limited. While Starbucks acknowledges the trial court's finding that "plaintiff prevailed on the majority of her claims," Starbucks says that finding is erroneous.
Starbucks minimizes plaintiff's success below. Plaintiff sought and obtained $4,000 in Act damages by establishing that she personally encountered at least one ADA violation. Her operative complaint alleged the existence of 28 accessibility barriers that violated the ADA and/or the CBSC and sought injunctive relief requiring the removal of all identified barriers. Prior to trial, plaintiff represented that Starbucks had removed certain of the alleged barriers and limited her request for injunctive relief to nine alleged barriers. Plaintiff obtained injunctive relief as to six barriers, and we have upheld the injunction as to the following four: (1) lack of 36-inch accessible route, (2) lack of strike-side clearance at the restroom, (3) lack of clear floor space at the accessible table, and (4) excessive door operating pressure. Plaintiff was denied injunctive relief as to (1) the location of the interior accessible table, (2) the clearance on top of the service counter, and (3) the exterior accessible seating.
While plaintiff's trial brief listed 10 alleged barriers for which she continued to seek injunctive relief, two of the items listed—12(s) and 12(y)—identified the same alleged barrier. The interior barriers identified in plaintiff's trial brief were: excessive door operating pressures, lack of a 36-inch-wide accessible route through the Store, lack of wheelchair clearances and reach ranges at service counters, lack of clearance on top of the service counter, lack of accessible seating, lack of strike-side clearance, and lack of clearance in the restroom. The remaining two barriers related to the exterior seating. Some of the barriers were multi-part. For example, with regard to the interior accessible seating, plaintiff complained about the size, nature, and location of the accessible table. --------
Based on our review of the record, we cannot say the trial court abused its discretion in declining to reduce plaintiff's attorney fees for limited success. However, we have modified the judgment to eliminate two elements of the injunctive relief ordered by the court. Accordingly, remand is appropriate to allow the trial court to revisit the amount of attorney fees awarded in light of our ruling.
4. Attorney Fees Incurred in Litigating Case Against Settling Defendant Capitol Square
Starbucks raises two claims related to fees it contends plaintiff incurred in the prosecution of her claims against settling defendant Capitol Square.
First, Starbucks argues the trial court erroneously failed to disallow all of the attorney fees directly attributable to litigating plaintiff's claims against Capitol Square. That point is well taken. In opposing plaintiff's motion for attorney fees, Starbucks identified $12,210 in fees solely attributable to plaintiff's efforts in litigating against Capitol Square. The trial court agreed to reduce the attorney fee award by "the amount specifically identified [by Starbucks] as attributed to Capital Square," but erroneously identified that amount as $12,000. On remand, the trial court is directed to reduce the fee award by the full $12,210.
Second, Starbucks maintains the trial court abused its discretion in refusing to disallow half of all attorney fees incurred prior to the settlement—$53,184.83—on the theory that those fees were incurred in litigating against Capitol Square. We find no abuse of discretion.
"California law has recognized, in different contexts, that trial courts have discretion not only in setting the amount of an award of attorney fees, but in allocating the award among various defendants based on their relative culpability." (Gorman, supra, 178 Cal.App.4th at pp. 97-98.) Attorney fee apportionment may also be appropriate in cases involving settling and nonsettling defendants. (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 975-976 & 977, fn. 7 (Kizer).) "Whether [the sort of] precise allocation of time [Starbucks advocates here] is appropriate or possible in a given case will turn on the posture of the case and the nature of the claims against the various defendants." (Id. at p. 977, fn.7.)
Apportionment is also sometimes appropriate on a cause-of-action by cause-of-action basis, such as "[w]hen a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted . . . ." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.) Importantly, however, "[s]uch fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award." (Ibid.) Put differently, "[a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units." (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) Logic dictates that similarly, apportionment among multiple defendants is not required where a plaintiff's claims against them involve overlapping legal or factual issues, such that segregating the hours by party is impracticable.
Plaintiff asserted both of her causes of action against both defendants and took the position that, as landlord and tenant, they were jointly and severally liable for all the complained-of ADA violations. Starbucks does not dispute that plaintiff's claims against it and Capitol Square involved overlapping facts and legal issues. To the contrary, Starbucks acknowledges that "the work done before [the settlement] was of equal benefit against Starbucks and Capitol Square." In view of the foregoing, the trial court could reasonably have concluded that apportionment of fees not specifically attributable to one defendant was not practicable given the substantial overlap between plaintiff's claims against Starbucks and Capitol Square. That is, the court could have concluded that precise allocation was not possible given the nature of the claims. (Kizer, supra, 211 Cal.App.3d at p. 977, fn. 7.) There was no abuse of discretion.
5. Refusal to Reduce Fees Based on Block Billing, Excessive Internal Conferencing, Time Spent on Clerical Tasks, and Vague Time Entries
Starbucks sought attorney fee reductions for what it claimed was improper block billing, vague time entries, excessive internal conferencing, and clerical work. The trial court declined to make the requested deductions, reasoning that "the amount of the reductions proposed . . . [was too] vague and arbitrary." Starbucks maintains the trial court abused its discretion.
a. Block Billing
Starbucks sought a reduction in fees on the ground that block billing was used. "Block billing occurs when 'a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.' " (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279.) "Block billing presents a particular problem for a court seeking to allocate between reimbursable and unreimbursable fees, and trial courts are granted discretion 'to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.' " (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695.) That said, block billing is not considered "objectionable per se . . . ." (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.)
In support of its opposition to plaintiff's request for attorney fees, Starbucks provided a chart with all the time entries it identified as being block billed. Starbucks calculated the amount of fees associated with those time entries to be $46,776 and requested a reduction in fees equal to 10 percent of that amount, or $4,677.60.
We have reviewed the challenged time entries. Many are not block billed, but rather contain a detailed description of a task or series of related tasks. In any event, as noted, a fee reduction for block billing is permissible when the practice prevents the trial court from distinguishing between compensable and noncompensable tasks. The trial court identified no such problem here. Accordingly, we cannot say it abused its broad discretion in declining to reduce the fee award on block billing grounds.
b. Vague Time Entries
Starbucks sought a $723 reduction in fees for vague time entries, or 10 percent of the fees associated with the entries it identified as improperly vague. Starbucks set forth the allegedly vague time entries in a chart submitted with its opposition to plaintiff's fee request.
Almost all of the entries challenged on this basis are entries for under one half hour of time for correspondence with opposing counsel that do not indicate the subject of the referenced communications. We cannot conclude that the trial court abused its discretion in concluding that those entries were compensable and reasonable.
Other entries are clear in the context of the record as a whole. For example, on November 4, 2013, plaintiff's attorney billed 3.40 hours to "Deposition: Preparation for the deposition." A quick review of the record makes clear that plaintiff's counsel was preparing for the deposition of one of Starbucks's designated witnesses, project manager of construction Teresa A. Tate, which counsel took on November 5, 2013. In sum, we discern no abuse of discretion.
c. Excessive Internal Conferencing
Starbucks sought a $28,733.76 reduction in fees for what it claims was excessive conferencing between plaintiff's counsel and her paralegal staff.
Starbucks identified 177 time entries that referred to internal conferencing, meaning discussions among plaintiff's legal team, including instructions from plaintiff's attorney to paralegals. Starbucks set forth those time entries in a chart submitted with its opposition to plaintiff's fee request. Starbucks then totaled the number of hours (117.2) and amount billed ($29,931) in those 177 time entries. While Starbucks acknowledges that the challenged entries do not constitute purely conferencing time, but rather each contain a reference to conferencing, it seeks a reduction based on the full amount billed in those entries.
Starbucks's legal fee auditor declared that he had conducted legal fee audits in two matters in which the firms involved had billed $3 million or more in fees. In both of those cases, the amount of fees associated with internal conferencing was under 2 percent of the total fees. Based on that experience, the auditor opined that "a reasonable amount of billing for conferencing in this case should not exceed 4 percent of total fees." The auditor calculated that billing for internal conferencing constituted 14.9 percent of plaintiff's counsel's total fees, such that "10.9 percent [should be] disallowed." The auditor then calculated the fees to be disallowed as follows: he multiplied the total amount billed for internal conferencing ($29,931) by 4 percent to obtain $1,197.24. He subtracted that number from the total amount billed for internal conferencing to obtain $28,733.76, which he said had to be disallowed.
As an initial matter, we note that the auditor's calculation is flawed. He argued that fees for internal conferencing should not exceed 4 percent of plaintiff's counsel's total fees; in other words, fees for internal conferencing above 4 percent of plaintiff's counsel's total fees should be disallowed. To calculate the amount of fees to be disallowed under that theory, he should have calculated 4 percent of plaintiff's counsel's total fees and subtracted that amount from the total amount billed for internal conferencing. That calculation looks like this: (.04)($200,880.50) = $8,035.22. $29,931 - $8,035.22 = $21,895.78. But that is not what the auditor calculated at all. Rather, he calculated 4 percent of the total amount billed for internal conferencing and subtracted it from the total amount billed for internal conferencing to obtain 96 percent of the total amount billed for internal conferencing, which he represented as the amount to be disallowed. That is, he represented that 96 percent of the total amount billed for internal conferencing should be disallowed, but his argument was that anything above 4 percent of plaintiff's counsel's total fees should be disallowed. As a result of his error, Starbucks overstated its disallowance request by nearly $7,000.
Computation errors aside, Starbucks provides no legal authority for the rule it asks us to apply: namely, it is per se unreasonable for attorneys to spend more than 4 percent of their time in any case on internal conferencing. Based on our review of the challenged time entries, we cannot say the trial court abused its discretion in refusing to apply that bright-line rule here. Many of the time entries at issue involve plaintiff's attorney giving instructions to paralegals. The court reasonably could have concluded that time was reasonably spent because it enabled paralegals to complete tasks that might otherwise be performed by a lawyer at a higher rate.
d. Clerical Work
Starbucks sought a $3,776.50 reduction in plaintiff's requested fees for time it contends was spent on noncompensable clerical tasks. Starbucks identified each time entry that, in its view, billed for clerical work in a chart filed in support of its opposition to plaintiff's fee request.
Purely clerical or secretarial tasks should not be billed at a lawyer or paralegal's usual rate, regardless of who performs them. (Missouri v. Jenkins (1989) 491 U.S. 274, 288, fn. 10.) Calendaring, preparing proofs of service, internal filing, preparing binders for a hearing, and scanning are examples of tasks that have been found to be purely clerical and thus noncompensable or compensable at a reduced billing rate. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1187; Ridgeway v. Wal-Mart Stores Inc. (N.D. Cal. 2017) 269 F.Supp.3d 975, 991.)
Many of the challenged time entries include clerical work, such as calendaring, scanning documents, preparing proofs of service, photocopying, and compiling binders. The trial court abused its discretion in awarding fees at attorney and paralegal rates for such work. On remand, the trial court is directed to review the challenged time entries and disallow or reduce fees attributable to clerical tasks.
6. Refusal to Disallow Fees Related to Unsuccessful Summary Judgment Motion
Starbucks argues the trial court abused its discretion in refusing to disallow the $5,445 in fees related to plaintiff's unsuccessful summary judgment motion. We disagree.
As a general rule, "all time reasonably spent should be compensated." (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274.) That may include "time spent on an unsuccessful legal theory" if the trial court, in its discretion, determines that the time "was reasonably incurred." (Ibid.) "A litigant should not be penalized for failure to find the winning line at the outset, unless the unsuccessful forays address discrete unrelated claims, are pursued in bad faith, or are pursued incompetently, i.e, are such that a reasonably competent lawyer would not have pursued them." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1303.)
Here, the trial court concluded that the fees incurred in connection with the summary judgment motion were reasonable. Nothing in the record convinces us that the trial court's judgment in that regard was "clearly wrong." (PLCM Group, supra, 22 Cal.4th at p. 1096.) Therefore, we find no abuse of discretion.
IV. DISPOSITION
The judgment of the superior court is modified to strike paragraphs (c) and (f) of the injunctive portion of the judgment. As so modified, the judgment appealed from in case number H042848 is affirmed.
The December 2015 attorney fees and costs order appealed from in case No. H043393 is reversed and the matter is remanded to the trial court. On remand, the court is directed to (1) reduce the fee award by $210 to reflect all of the fees specifically attributable to Capitol Square, (2) revisit Starbucks's limited success argument in light of this court's modification of the injunction, and (3) review the time entries challenged as "clerical" and disallow or reduce fees attributable to clerical tasks.
The parties shall bear their own costs on appeal.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
MIHARA, J.