Summary
calculating $300 per hour lodestar rate for Frankovich and declining to award a rate of $400 per hour, which is normally reserved for complicated civil rights cases litigated by attorneys with at least 30 years of experience
Summary of this case from Chapman v. JacobsOpinion
No. 2:13-CV-00213-JAM-JFM
05-11-2015
MARSHALL LOSKOT, Plaintiff, v. ANNIE'S PANDA GARDEN; SHIH KUN WANG and HONG YING WANG, as Co-Trustees under that certain DECLARATION OF TRUST executed September 21, 1993; and SU NI ZHENG, an individual dba ANNIE'S PANDA GARDEN, Defendants.
ORDER AWARDING FEES AND COSTS
Plaintiff Marshall Loskot ("Plaintiff") sued Defendants' restaurant for architectural barriers allegedly violating the Americans with Disabilities Act ("ADA") and California law. The parties settled pursuant to a Federal Rule of Civil Procedure 68 offer. Plaintiff now moves for fees and costs.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for May 6, 2015.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff visited Defendants' restaurant on multiple occasions in 2012. Compl.(Doc. #2) ¶ 2. After sending a letter advising of architectural barriers he encountered as a person who uses a wheelchair and receiving no response, Plaintiff brought suit seeking injunctive relief and statutory damages. Compl. ¶ 20. The parties filed no motions, but engaged in negotiations and settled the claims as to injunctive relief. See Frankovich Decl. (dated January 15, 2015) Exh. A. Following the pretrial conference, Defendants also extended an offer of judgment as to damages under Federal Rule of Civil Procedure 68 (Doc. #23), which Plaintiff accepted (Docs. ##24, 26). Plaintiff now moves for an award of fees and costs consistent with that Rule 68 agreement (Doc. #31). Defendants oppose the motion (Doc. #35).
II. OPINION
Defendants oppose Plaintiff's fee application on two grounds: first, that the parties entered into a prior settlement inclusive of attorney's fees and costs, and second, that attorney Thomas E. Frankovich's hourly rate is too high.
A. Prior Settlement of Attorney's Fees
The Court interprets a settlement agreement "according to the objective intent of the parties." Gallagher v. San Diego Unified Port Dist., 2009 WL 2781553, at *11 (S.D. Cal. Aug. 31, 2009) (citing Botefur v. City of Eagle Point, Or., 7 F.3d 152 (9th Cir. 1993)). The parties here have evidenced an objective intent that the issue of attorney's fees be resolved by this Court pursuant to Plaintiff's fee application. Defendants' assertion that the parties entered into a prior agreement is unsupported. They provide a May 2014 email from Mr. Frankovich's legal assistant stating, "This is ti [sic] verify that the case has settled for $8750, we will send a General Release. [sic]" See Opp. Exh. A. Defendants' claim that this settlement amount was memorialized in October 2014, see Opp. at 2, but the document they provide does not reference this $8750 and instead states that "[a]ttorneys' fees, costs and litigation expenses remain before the Court." Mot. Exh. at 3. Furthermore, the parties later entered into the Rule 68 agreement that provides, "the parties have agreed to resolve the issues of attorney's fees cost and litigation expenses by a fee application." Doc. #26 at 1. The Court therefore concludes that the parties have evidenced an objective intent to resolve the issue of fees by this fee application.
B. Hourly Rates
The parties apparently agree that the loadstar method is appropriate for calculating fees in this case. See Hall v. City of Fairfield, 2014 WL 1286001, at *3 (E.D. Cal. Mar. 31, 2014) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975)). Plaintiff has requested that Mr. Frankovich's hourly rate be set at $400 per hour. See Mot. at 10. Defendants argue that the prevailing rate in the Sacramento community for ADA cases is $250 per hour. Opp. at 2.
"A court awarding attorney fees must look to the prevailing market rates in the relevant community." Bell v. Clackamas Cty., 341 F.3d 858, 860 (9th Cir. 2003). The prevailing rate for an ADA barriers case in Sacramento for an experienced attorney such as Mr. Frankovich is $300. See Johnson v. Allied Trailer Supply, 2014 WL 1334006, at *6 (E.D. Cal. Apr. 3, 2014); Jones v. Cty. Of Sacramento, 2011 WL 3584332, at *6 (E.D. Cal. Aug. 12, 2011).
The Court has considered Mr. Frankovich's experience and reputation, but finds $400 per hour to be excessive. A rate of $400 is generally reserved for "complicated civil rights cases litigated by attorneys with thirty or more years of experience." See Johnson, 2014 WL 1334006, at *5 (collecting cases); Jones, 2011 WL 3584332, at *6 (finding that $350 was reasonable for an attorney with more than twenty years of experience in a police brutality case with multiple claims and defendants that proceeded to trial). In contrast, this ADA case was not complicated. Accord Yates v. Vishal Corp., 2014 WL 572528, at *6 (N.D. Cal. Feb. 4, 2014) (characterizing Mr. Frankovich's ADA practice to include "simple" cases which he has "reduced . . . to a kind of routine") (quotation marks omitted); see Joint Pretrial Statement at 3:6 (noting that this case arose from "nearly identical ADA deficiencies" as a previous case litigated by a different plaintiff). The Court also declines to go as low as $250, because Defendants have not provided a comparable case or other evidence that $250 per hour is an appropriate rate. Defendants cite Loskot v. D&K Spirits, LLC, 2011 WL 567364 (E.D. Cal. 15, 2011), but that case held that $250 per hour was reasonable because the matter had resolved by default judgment. See id. at *5. The Court therefore calculates Mr. Frankovich's loadstar at $300 per hour.
C. Other Aspects of the Fee Application
Defendants do not challenge any other aspects of the fee application. The Court has reviewed the breakdown of the hours billed, the rates billed for Mr. Frankovich's paraprofessionals, the enumerated costs, and the other aspects of the fee application, and finds them to be reasonable.
III. ORDER
For the reasons set forth above, the Court awards Plaintiff reasonable attorney's fees and costs in the following amounts:
| Fees: | $13,302 |
| Costs: | $ 1,930 |
| Total: | $15,232 |
IT IS SO ORDERED. Dated: May 11, 2015
/s/ _________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE