WILLIAM B. SHUBB, District Judge.
Plaintiff Hollynn D'Lil, a paraplegic, brought this action under the Americans with Disabilities Act, 42 U.S.C. § 12101
Plaintiff filed this action on August 23, 2011 and asserted claims for (1) the public services provisions of the ADA, 42 U.S.C. § 12132, against the city; (2) section 504 of the Rehabilitation Act of 1973 against the city, 29 U.S.C. § 794; (3) the public accommodations provisions of the ADA against Delta King and the city, 42 U.S.C. § 12182; (4) California Health and Safety Code section 19955 against Delta King and the city; (5) California Government Code section 4456 against the city; (6) the California Disabled Persons Act ("CDPA") against Delta King and the city, Cal. Civ. Code § 54
In a thirty-five-page exhibit attached to her Complaint, plaintiff alleged numerous barriers that prevented her from fully enjoying the Delta King. Plaintiff and the city of Sacramento reached a separate settlement in December 2014. In July 2014, Delta King moved for summary judgment limited to the issues of 1) the slope of the gangways; 2) vertical access to the fourth and fifth decks; 3) leveling of the cambered decks; 4) removal of raised thresholds; and 5) the configuration of the doors. The court denied Delta King's motion for summary judgment in its entirety.
As the trial date approached, the parties agreed to a bifurcated trial in which the first phase would be a bench trial, followed by a jury trial limited to three significant issues. The primary reason for bifurcating the trial was to render the case digestible for the jury and avoid having to instruct and inevitably confuse the jury about the intricacies of every alleged barrier and the corresponding federal and state access guidelines. The bench trial commenced on January 22, 2015, and after 4 days of trial, Delta King and plaintiff reached a settlement.
In the Consent Decree memorializing the settlement, the parties agreed that plaintiff "shall be deemed to be the `prevailing party.'" (Consent Decree ¶ 24 (Docket No. 159).) To say that the parties disagree about the appropriate award of fees and costs is a gross understatement. Plaintiff seeks a minimum fee award of $789,760 and costs of $218,893, for a total award of $1,008,653 without even considering her requested enhancement. Delta King contends plaintiff has already been overcompensated in the amount of $74,294.43 and thus the court should award plaintiff absolutely no fees or costs. Together, the parties submitted no less than 4,470 pages of briefing, declarations, and exhibits to "aid" the court in determining the appropriate award.
Pursuant to 42 U.S.C. § 12205, a federal court may award "a reasonable attorney's fee" to the prevailing party in an action under the ADA. 42 U.S.C. § 12205;
The court calculates a reasonable amount of attorney's fees by following a two-step process. First, the court determines the lodestar calculation—"the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."
In determining the size of an appropriate fee award, the Supreme Court has emphasized that courts need not "achieve auditing perfection" or "become green-eyeshade accountants."
Plaintiff submits an 837-page billing statement itemizing the time spent by attorneys Timothy Thimesch and Michelle Thimesch. (Docket No. 174.) Ms. Thimesch billed 38.7 hours, and defendant does not dispute the reasonableness of that time. Defendant hotly disputes the reasonableness of Mr. Thimesch's claimed 2,032.3 hours.
As an initial impression and based on its familiarity with this case, the court agrees that Mr. Thimesch's claimed 2,032.3 hours far exceed a reasonable number of hours expended on this case. The court questions not only the reasonableness of this amount of time, but also whether Mr. Thimesch's records accurately reflect the time he actually worked. Unfortunately, this is not the first time a court has questioned the accuracy of Mr. Thimesch's representations as to the hours he worked. In another case in this district, a judge reduced Mr. Thimesch's hours by 26.6 for time purportedly spent preparing a motion for summary judgment after the case had settled and several additional hours for attending a hearing that never occurred.
Attorneys are often criticized for "block billing" because it "makes it more difficult to determine how much time was spent on particular activities."
Mr. Thimesch's billings include significant block billing. For example, on August 22, 2014, Mr. Thimesch billed 14.6 hours for work on plaintiff's opposition to defendant's motion for summary judgment, describing his tasks only as "working on all opposition documents simultaneously." (Docket No. 174 at 479.) The following two days, Mr. Thimesch billed another 18.1
In preparing his opposition to defendant's motion for summary judgment alone, Mr. Thimesch billed approximately 226 hours, and most of this time is billed in large blocks with very little explanation. Although the summary judgment motion raised some difficult issues such that an opposition would necessitate more time than in a routine ADA case, plaintiff also submitted significant briefing on unnecessary issues. The court agrees with defendant that the total time expended in opposing the summary judgment motion was unreasonable. In light of the extensive block billing throughout the case, the inadequate explanations for the work undertaken in those entries, the court's familiarity with the issues raised in the summary judgment motion, and plaintiff's over-investment of time on issues that were irrelevant to the motion for summary judgment, the court will
In reviewing Mr. Thimesch's 837-page billing statement, which has 3,442 entries, another reason his timesheets likely overstate the time he expended is readily apparent. At the opposite extreme from block billing, a vast majority of Mr. Thimesch's billings divide related tasks so that time expended on what truly is one task receives two or more billing entries. For example, Mr. Thimesch repeatedly billed .1 of an hour to receive an email and, as a separate entry, an additional .1 of an hour to respond to that email. (
While this approach may initially seem like an adequate response to block billing criticisms, it is similarly subject to abuse. It is commonly understood that attorneys round up time in their billing entries so that a 4-minute task would be billed at.1 of an hour (6 minutes). When every task is parsed into separate billing entries, the attorney receives the benefit of each minute that was not spent working, but was simply added from rounding up. Although these extra minutes may seem miniscule, they can make a significant impact on the overall time billed when, as in this case, the billing statement has 3,442 entries.
Throughout the four days of the bench trial, the court observed Mr. Thimesch spend several hours on issues that were either undisputed, irrelevant, or were supposed to be relegated to the second phase of trial before the jury. The court repeatedly advised Mr. Thimesch to avoid duplication and save any questions relevant to the jury phase or both phases for the second phase. (
Mr. Thimesch also represented William Lawson, who visited the Delta King and allegedly experienced barriers that the plaintiff in this case did not. Mr. Thimesch mentioned joining Mr. Lawson in this case as the trial approached, but never sought to do so and, if he had, would have had difficulty overcoming the late filing of any motion to amend. Although Mr. Thimesch contends that the time expended with Mr. Lawson should be included because plaintiff intended to call Mr. and Mrs. Lawson as witnesses, the court will exclude entries that do not appear from their descriptions to have any relation to trial preparation. To the contrary, they appear to be repeated communications with Mr. Lawson about and research and work done in contemplation and settlement of his potential case. Most of the entries even identify Mr. Lawson, not plaintiff, in the client column. Because Mr. Lawson was not a plaintiff in this case, the fees attributable to his threatened lawsuit and settlement cannot be assessed against defendant in this case. Based on the court's independent review of the billings to exclude time attributable to Mr. Lawson's potential case and settlement of his claims, the court will
Mr. Thimesch maintains his office in his home in Walnut Creek and billed 143.9 hours for travel time from Walnut Creek to Sacramento. Judges in this district have repeatedly held that it is unreasonable for attorneys who routinely try cases in this district but maintain offices elsewhere for their own convenience to shift their travel costs to their adversary.
As the Ninth Circuit has explained, "[i]t simply is not reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney employed by her could perform at a much lower cost."
Mr. Thimesch generally appears to recognize that he cannot seek reimbursement for clerical tasks as he often indicated "clerical" or "paralegal" in many of his billing entries and accounted for that time in separate columns for which he does not seek reimbursement. In reviewing his billings, however, the court noticed that at least one entry designated as "clerical" and involving a clerical task appears to have inadvertently been billed as attorney time. (
Defendant also objects to tasks, such as preparing subpoenas, that should not have been billed as attorney time. For example, on May 24, 2012, Mr. Thimesch described his work as "drafted []a 215-page discovery package consisting of notices of deposition, requests to produce, interrogatories, request for admission, and 5 subpoenas; revision to final." (
Other similar entries, such as receiving a fax regarding a subpoena and receiving emails to continue a deposition, are also clerical tasks that should not be billed at an attorney rate. (
"Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."
The time billed for phone calls made during trial illustrate the lack of efforts made to meaningfully review the billing. From the first day of trial on January 22, 2015 and through January 26, 2015, Mr. Thimesch logged entries for twenty-four phone calls, totaling 2.1 hours. On one occasion, Mr. Thimesch billed .25 of an hour to call Karl Danz when his billings indicate that he merely "left [a] message to return call regarding trial prep." (Docket No. 174 at 784.) Surely, his voice message did not total 15 minutes and Mr. Thimesch meant to bill less time. This apparent clerical error underscores the court's finding that Mr. Thimesch's lengthy billings were not adequately reviewed. Although this error may be readily apparent, many errors would be less obvious and it is not feasible for the court to review all 3,442 entries to catch even the obvious errors. The court has no reason to believe that Mr. Thimesch labored to ensure the accuracy of his billings, especially because he lacked the same incentive to do so as an attorney submitting a bill to a client.
In light of the lack of billing judgment apparent through the excessive entries for voicemails, text messages, and merely receiving emails or correspondences and the court's finding that Mr. Thimesch did not closely review his 837-page billing to correct inadvertent errors, the court will
The Supreme Court has instructed that "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees."
The Ninth Circuit has "applied
Here, however, the parties' assessments of the barriers at issue and the success plaintiff obtained through the Consent Decree are best described as ships passing in the night. Both sides attempt to tally the barriers at issue at the time of trial and those remediated through the Consent Decree and then quantify the degree of plaintiff's success. According to plaintiff, 54 barriers went to trial and the Consent Decree corrected 196 barriers, thus plaintiff "achieved an astounding 360% of the relief that went to trial." (Pl.'s Reply at 1:23-24.) Defendant, on the other hand, contends that only 5 barriers went to trial and the Consent Decree corrected 1/2 of 1 of those barriers and thus calculates plaintiff's success at 10%. (
With the exception of three significant issues, the parties agreed the court would decide all remaining issues. The Stipulated Bifurcation Order articulated the issues for the jury as:
(Stipulation and Order to Bifurcate at 2:2-10 (Docket No. 107).) The parties did not itemize the issues for the bench trial because, as the court understood it, the bench trial involved numerous discrete barriers and a determination as to whether they complied with the applicable standards.
When the parties cannot agree on a manageable breakdown of the barriers at issue at the time of settlement, reducing any award for limited success under on a barrier-by-barrier basis does not make sense. Moreover, one of the primary benefits of the Consent Decree was relieving the parties and the court from having to decipher the relevance and ultimate merits of the fifty-three barriers in plaintiff's Matrix. (
Plaintiff's calculation of her success also has apparent flaws. For example, plaintiff includes 113 barriers attributable to the potential related case that Mr. Thimesch contemplated filing on behalf of Mr. Lawson. Although defendant may have agreed to settle Mr. Lawson's potential claims from his "unrelated incident" at Delta King as part of a global settlement agreement, (First Thimesch Decl. ¶ 5 (Docket No. 181)), Mr. Lawson was not a plaintiff in this case and the alleged barriers he encountered were thus not at issue. Any award of fees in this case cannot compensate plaintiff's counsel for time expended or results obtained in relation to potential claims by an individual who was not a party to this case. Excising only the results plaintiff attributes to Mr. Lawson, plaintiff's own assessment quickly drops from a 360% success to a 153% success.
It is also not possible to assess plaintiff's success at or even near 100% because there are significant barriers litigated in this case that will remain unremediated or were remediated only under the "readily achievable" standard. For example, two of the five barriers at issue in defendant's motion for summary judgment were the "leveling of cambered decks" and the "configuration of the doors."
At the same time, however, it is disingenuous for defendant to argue, as it emphatically does, that it offered to remediate all barriers under the "readily achievable" standard as of February 25, 2013 and that plaintiff's fees should thus cease as of that date. In its February 25, 2013 settlement offer, defendant identified the "elevator
Overall, plaintiff unquestionably retracted some of her demands in order to reach a settlement with defendant. Quantifying a percentage of success, however, is almost impossible in light of the parties' irreconcilable views of the case and the seemingly moving target as to the barriers actually at issue. As an extremely conservative estimate, and taking into account deductions already made for block billing and inefficient trial time, the court finds that plaintiff expended at least 25 hours in opposing defendant's motion for summary judgment and performing site inspections and 7 hours preparing to go to trial on significant issues on which she ultimately did not prevail. The court will therefore
Mr. Thimesch also added 50 hours to his total time to account for time expended in replying to defendant's opposition to this motion, which he indicates is less than the 56.3 hours he actually expended. Although Mr. Thimesch attributes this duration of time to defendant's lengthy opposition, he neglects to mention that his unwieldly billings and motion were what prompted that length. Nor does Mr. Thimesch's explanation that he expended over 50 hours "in connection with the reply" sufficiently explain how he spent that time. Taking into account all of these considerations, the court finds that 20 hours was a reasonable amount of time to expend on the reply and will therefore
Defendant also argues that 81.95 hours should be excluded because they are attributable to time Mr. Thimesch expended on separate claims against the city. At an hourly rate of $310, this would equal $25,404.50 in fees. It is undisputed that the city has already paid Mr. Thimesch $370,000 in fees as part of a settlement with plaintiff. Because the court will off-set the total award by this amount, it is unnecessary to deduct the additional 81.95 hours as they can be viewed as part of the $370,000.
With the aforementioned deductions of 332.8 hours, the total time remaining is 1,699.5 hours. The court's overall impression is that this is still an extraordinary number of hours and pushes the envelope of reasonableness. Given the unique issues in this case, however, the court cannot conclude that it was necessarily unreasonable for Mr. Thimesch to complete the investigations, research, and discovery he did. The court therefore finds it reasonable for Mr. Thimesch to be compensated for
The court must multiply the reasonable hours expended in this litigation by a reasonable hourly rate to calculate the lodestar amount. To determine the reasonableness of the hourly rates claimed, the court looks to "the prevailing market rates in the relevant community,"
Both of plaintiff's attorneys practice primarily in the Northern District and seek hourly rates of $560. Mr. Thimesch recognizes that $560 per hour exceeds the prevailing market rate in the Sacramento legal community, but argues that $560 per hour is the prevailing rate in the Bay Area and the court should calculate plaintiff's fees under the rates in that locality.
In general, "the relevant community is the forum in which the district court sits."
Describing this case as a "high-risk" section "55/303"
If Mr. Thimesch and his handful of colleagues have drastically limited their ADA practice in the Eastern District, then someone has stepped in to pick up the slack because there is certainly no shortage of ADA cases in this district. As to Mr. Thimesch's other complaints about litigating ADA cases in this district, they are unfounded and incorrect. Mr. Thimesch complains that the "atmospherics and low hourly fee rates typically awarded" make this district an "exceedingly unattractive market for handing [sic] cases." (
The court is unsure what advantages Mr. Thimesch thinks opponents have in litigating ADA cases in this district. To the extent that Mr. Thimesch's assessment may be construed as suggesting bias on the part of the judges of this court, it is unwarranted and borders on offensive. The court's general experience with ADA cases in this district is that the plaintiffs almost invariably prevail. Surely the court did not give defendant an advantage in this case when it denied its motion for summary judgment in its entirety. The Eastern District also offers early mediation and settlement conferences through its free Voluntary Dispute Resolution Program,
In seeking the narrow exception providing for rates outside of the district, the court would also expect Mr. Thimesch to provide evidence other than his own opinion to show that there was not a single local attorney qualified and available to take this case.
For example, the Ninth Circuit affirmed the award of an out-of-district fee when the fee applicant provided "numerous declarations of San Francisco and Sacramento attorneys which directly support their contention that Sacramento attorneys and law firms with the requisite expertise and experience to handle this type of complex institutional prison reform litigation were unavailable."
Similarly, in
In stark contrast to the evidence in those cases, Mr. Thimesch submitted only his opinions as to the unavailability of local counsel. Mr. Thimesch seems to assume that this case necessitated a lawyer from a suburb of Oakland because not a single attorney in the local community could have handled it. Sacramento is not exactly Mayberry RFD. It is the seat of state government and a major metropolitan area with a robust and sophisticated bar. That hourly rates are generally lower in Sacramento than the Bay Area is more likely attributable to the reduced cost of doing business in Sacramento, not the lack of experience or expertise of the bar.
Even if the court accepts Mr. Thimesch's representation that there are no lawyers in Sacramento who currently maintain a "section 55/303 practice," this does not necessitate hiring a lawyer outside of the Sacramento area. Seeking building modifications under the ADA and analogous state statues may, as Mr. Thimesch believes, require a harder fight than seeking only "readily achievable" modifications. It does not, however, necessarily require substantially greater expertise and legal acumen, especially if counsel hires a slew of experts as Mr. Thimesch did. More importantly, through the Consent Decree in this case, Mr. Thimesch achieved relief more akin to what would be accomplished in a routine case under the "readily achievable" standard. Plaintiff may have obtained some concessions from defendant because she sought building modifications, but she did not achieve the heart of the modifications she fought to impose. Mr. Thimesch's value as a lawyer in this case thus did not turn on his "section 55/303" expertise. Mr. Thimesch has simply made no showing that the complexities or dynamics of this case were of such a level that local counsel could not or would not have handled it.
Mr. Thimesch also indicates that most counsel are reluctant to pursue building modifications under section 55 because the mandatory award of fees for the "prevailing party" applies regardless of which party prevails.
In light of the lack of evidence before the court and the court's own familiarity with local counsel and the expertise necessary to litigate this case, the court is not persuaded that there was not a single qualified local counsel or counsel from a nearby community that charges rates consistent with those in Sacramento who would have been willing and able to handle this case.
The court must now determine the reasonable rate in Sacramento for similar work performed by attorneys of comparable skill, experience, and reputation.
Mr. Thimesch has 25 years of experience and has handled section "55/303 cases" since 1994. (First Thimesch Decl. ¶¶ 91, 99.) He founded his own practice in 2000 and has successfully litigated cases achieving building modifications to provide disabled access to numerous institutions such as banks, hotels, recreational facilities, and theaters. (
In Sacramento, judges have recently determined that the current prevailing rate for experienced attorneys handling routine disability access cases is $300.
Mr. Thimesch's experience is consistent with attorneys awarded $300, which is the higher end of the prevailing rate for routine ADA cases. From the court's general experience with ADA attorneys awarded $300 per hour, Mr. Thimesch handled this case at an equal or even better level. This case was also more complicated and necessitated more research than a routine ADA case.
In Sacramento, "[a] rate of $400 is generally reserved for complicated civil rights cases litigated by attorneys with thirty or more years of experience."
Here, while this case was not a routine ADA case and arguably merits slightly more than $300, Mr. Thimesch did not present himself to be a highly experienced trial lawyer. For example, Mr. Thimesch repeatedly tried to use defendant's statement of undisputed facts that was submitted in support of its motion for summary judgment as evidence at trial. (
While the court does not dispute that Mr. Thimesch has garnered significant ADA expertise in his twenty-five years of practice, at times he also seemed to struggle with the issues in this case. He did not appear to come into this case with a strong understanding of the more complex issues that were unique to this case. Even in his area of expertise, Mr. Thimesch's billings show that he relied heavily on experts to determine the applicable federal and state access requirements. These observations are similar to a recent assessment of Mr. Thimesch by another judge in this district: "Despite Mr. Thimesch's enthusiastic account of his qualifications, the Court has observed nothing in his presentation and management of this case that would rank him above or below the median fee."
Mr. Thimesch also argues that a higher rate than the prevailing rate for routine ADA cases is merited because he sought building modifications and did not rely on the easier "readily achievable" standard. Mr. Thimesch has not shown, however, that greater expertise is necessary to seek building modifications. As previously explained, most of the remediations plaintiff achieved are akin to those achieved under the readily achievable standard and thus any expertise gained from trying building modification cases did not significantly enhance plaintiff's recovery in this case. Any increased work necessitated by a case seeking building modifications is also compensated through the greater number of hours expended on the case.
With all of these considerations in mind, the court finds the prevailing market rate in Sacramento for this case may slightly exceed the higher end of a routine ADA case because this case raised unique issues. At the same time, however, Mr. Thimesch neither displayed an expertise requiring a significantly higher rate than $300 nor showed that his expertise substantially increased plaintiff's success in this case. The court therefore finds that a reasonable fee for Mr. Thimesch in this non-routine ADA case is $310 per hour.
Plaintiff likewise requests a rate of $560 per hour for Ms. Thimesch. Ms. Thimesch has over 25 years of transactional experience, including experience related to tax transfers and tax investment vehicles. (
Ms. Thimesch has not submitted any evidence identifying the prevailing market rate in Sacramento for a transactional attorney of similar skill and experience. Nor has she explained whether she maintains her own practice or works as an associate for Mr. Thimesch.
Accordingly, the lodestar in this case is $537,487.50, calculated as follows:
Over half a million dollars in attorney's fees for a case that necessitated opposing one motion for summary judgment, several site inspections, and a four-day bench trial is generous to say the least. Without doubt, it is "adequate to attract competent counsel."
Federal Rule of Civil Procedure 54(d)(1) and Local Rule 292(f) govern the taxation of costs to losing parties, subject to limits set under 28 U.S.C. § 1920.
Here, plaintiff seeks litigation expenses and costs in the amount of $218,890. Although defendant does not dispute that plaintiff is entitled to recover reasonable litigation expenses and costs as the prevailing party, it disputes the reasonableness of plaintiff's requested costs and litigation expenses. The court finds that Mr. Thimesch has adequately justified his costs for trial exhibits, service, court costs, Westlaw charges, and deposition costs. (
With the exception of meals during trial, defendant objects to numerous expenses for meals consumed during the course of Mr. Thimesch's work on this case. Although some attorneys may charge clients for meals under certain circumstances and with the client's consent, the court agrees that it is unreasonable to assess the cost of these meals against the losing party. Regardless of whether he was working on this case or not, Mr. Thimesch and his experts would have to eat and his meals did not advance plaintiff's case in any way. The court will therefore
Mr. Thimesch seeks reimbursement for numerous hotel expenses. Defendant does not object to expenses for Mr. Thimesch's hotel stay during trial. When rooms at the Delta King were booked in order to complete inspections, the court also finds these expenses reasonable because defendant has not indicated that it would have provided plaintiff with unrestricted access to guest rooms for similar durations without charge. (
On August 1, 2012, Mr. Thimesch argues it was reasonable for him and Karl Danz (one of plaintiff's many experts) to stay in a hotel overnight because they concluded a pre-mediation conference that day and had a settlement conference the next day. Mr. Thimesch's billings, however, reflect that the pre-mediation conference concluded at 5:30 p.m. and the settlement conference did not commence until the afternoon on the following day. (
Barry Attwood, plaintiff's lead expert who testified for most of the bench trial, indicates that his expenses and fees for this case were $86,002.56. (Docket No. 325 at 470.) Mr. Attwood's trial testimony was central to plaintiff's case, and Mr. Thimesch has adequately explained the necessity of his attendance at various events throughout the litigation. The court agrees with defendant, however, that the time he billed in assisting Mr. Thimesch prepare the opposition for summary judgment and draft jury instructions is more akin to work one would expect a lawyer to perform and, assuming it was appropriate work for an expert like Mr. Attwood, the amount of hours billed were excessive when considered in light of the hours Mr. Thimesch billed for the same work. The reasonableness of the time expended is also difficult to assess because, although Mr. Attwood's bill is similar to that of an attorney, he has significant entries that are block billed without adequate descriptions. Through Mr. Attwood's trial testimony, the court found that he was knowledgeable about the intricacies of the ADA, but despite his expenditure of almost 100 hours preparing his Matrix and reports, the Matrix had numerous errors. In light of all of these considerations, the court will
The court also questions the reasonableness of requiring defendant to pay Mr. Attwood's flat fee of $3,500 for expert testimony at trial when he has already billed for every minute he spent preparing for trial and the court did not hold full trial days. The first day of trial lasted less than five hours and the second and third days lasted less than three hours each. On the two days when Mr. Attwood testified for less than three hours, his normal rate of $250 per hour sky-rocketed to over $1,166 per hour when calculated in light of his $3,500 flat fee. Because Mr. Attwood seeks to bill similar to an attorney, with entries for every phone call and email, it is reasonable for his fee for trial testimony to be taxed against defendant at his hourly rate of $250, not an exorbitant flat fee. Moreover, because the court's own calendar dictated the limited trial days, defendant should not be punished for Mr. Attwood having to testify over the course of several days. The court will therefore
Plaintiff also hired Karl Danz, a contractor, as an expert witness and incurred $30,797.27 in fees for his services. Although defendant complains that Mr. Danz duplicated Mr. Attwood's efforts, plaintiff has sufficiently explained how Mr. Attwood's primary purpose was to identify barriers under the ADA and Mr. Danz's primary purpose was to propose modifications and determine the costs of those modifications. Although the parties settled before Mr. Danz testified, this distinction is consistent with the representations Mr. Thimesch made at trial regarding Mr. Danz's anticipated testimony. While defendant also objects to the travel time for Mr. Attwood and Mr. Danz, defendant's own expert was not located in Sacramento and defendant has not identified experts with similar experience in Sacramento. The court therefore will not deduct Mr. Danz's fee.
Plaintiff's next expert was David Cole, an independent marine consultant. The court agrees with defendant that this expert was unnecessary and unreasonable because, by October 2012, defendant had unequivocally admitted that the authority of the United States Coast Guard and other maritime regulations had ceased "before or during 1984-1989" when the Delta King was restored to a hotel. (Post Decl. Ex. G at 3 (Docket No. 188-6).) Plaintiff needlessly pressed forward on this issue at summary judgment as well.
Although defendant similarly objects to plaintiff's marine architect as unnecessary, his testimony focused on the access infrastructure and aided plaintiff in prevailing at summary judgment.
Next plaintiff seeks reimbursement for services by Arnie Lerner. From the redacted consulting services agreement plaintiff submitted, the court cannot decipher what services Mr. Lerner actually provided. (
Plaintiff's next expert was Dr. Peter Blanck who addressed "what equality means to persons with disabilities." (Second Thimesch Decl. ¶ 123.) Although Dr. Blanck's testimony and purpose likely overlapped with Mr. Attwood, plaintiff emphasizes that it was necessary to have an expert on this issue who was a "believable witness that the jury could relate to." (
Mr. Thimesch justifies expenses for Dan Finklea and Scott Ebert on the grounds that he has a "long history with [them] in assisting at inspections and in investigations" and "utilization of their skills when possible reduced the higher fees I would have faced if I had instead involved Atwood and Danz." (First Thimesch Decl. ¶ 142.) For the inspection on July 16, 2013, however, Mr. Attwood and Mr. Thimesch also attended the inspection, (
Mr. Ebert works for Ebert Enterprises, Inc., which does business as My PC Partners. His bills indicate only that he served as a "technician" for the inspections and provided "legal and tech assistive services." (Pl.'s Ex. 325 at 472.) The court is at a loss in determining what expertise or services he offered to the case. Although Mr. Thimesch now says Mr. Ebert was not going to testify at trial, Mr. Thimesch identified him as witness in the Final Pretrial Order. (
Similarly, because Mr. Ebert has not adequately accounted for his time as either an expert witness or legal assistant and his contribution to the case remains unclear, the court will
With deductions for unreasonable litigation expenses and costs of $35,792.15, the total litigation expenses and costs the court will tax against defendant is $183,097.90. The total award of attorney's fees and costs together is $720,585.40, to which the $370,000 in fees and costs paid by the city must be off-set, for a total award of $350,585.40.
The hearing on this motion was set for August 24, 2015 at 2:00 p.m. Although both defense counsel and defendant's representative appeared for the hearing, plaintiff did not appear because of his calendaring error. To provide plaintiff with the opportunity for oral argument, the court reset the hearing for the following day. Mr. Thimesch agreed at oral argument that his award of fees should be reduced to compensate defendant for appearing at the originally scheduled hearing. The court will therefore
IT IS THEREFORE ORDERED that plaintiff's motion for attorney's fees be, and the same hereby is, GRANTED in part. Defendant is directed to pay $349,835.40 in attorney's fees, litigation expenses, and costs to Mr. Thimesch.
