BARRY TED MOSKOWITZ, Chief Judge.
On December 2, 2013, Plaintiffs filed a motion seeking attorneys' fees and costs of $1,671,197.27, plus fees incurred in litigating this motion. (Docs. 183, 207.) For the reasons set forth below, Plaintiffs' motion for attorneys' fees and costs is hereby
The parties are familiar with the facts of the case.
1. Maurizio Antoninetti filed a lawsuit against Defendant in August 2005. Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. In that case, Mr. Antoninetti alleged injury arising from visits to two of Defendant's restaurants whose serving area layout violated the Americans With Disabilities Act ("ADA") as well as California's disability access laws.
2. This case was filed on December 6, 2006, as a six-count class action alleging the same facts. Antoninetti et. al. v. Chipotle Mexican Grill, Inc., No. 06-cv-2671. Discovery in the two pending cases proceeded jointly.
3. On May 7, 2008, in the Central District of California, a second class action was filed by plaintiffs residing outside of this district who were represented by the same counsel as those litigating here: Perkins et. al. v. Chipotle Mexican Grill, Inc.,
4. After granting partial summary judgment and holding a bench trial, Mr. Antoninetti prevailed in part in the individual action, but was not granted injunctive relief because the Court found that Chipotle's "Customers With Disabilities Policy," as amended in 2007, brought it into compliance with the ADA.
5. Mr. Antoninetti appealed that judgment. Both putative class actions were stayed pending the appeal. On July 26, 2010, Mr. Antoninetti prevailed, and the Ninth Circuit Court of Appeals remanded the case with instructions "to enter a judgment that Chipotle violated the Disabilities Act and to issue appropriate injunctive relief." Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1177 (9th Cir. 2010).
6. The stay of the Antoninetti putative class action was lifted on August 28, 2010. The stay in the Perkins case remained in place until a settlement was reached.
7. Mr. Antoninetti died on May 9, 2011. The Court granted Mrs. Antoninetti's unopposed motion to substitute as the plaintiff in this case.
8. Class certification was denied. The parties thereafter negotiated a global settlement of the individual claims in this class action, in the Perkins class action, and in fifteen additional individual suits, all of which were consolidated before this Court. More specifically, the individual plaintiffs in state court cases were added to the Antoninetti class action, and the Perkins case was transferred and consolidated with Antoninetti on December 3, 2013. (Order Consolidating Cases, No. 06-2671, December 3, 2013 (Doc. 187).)
9. Under the global settlement agreement, Chipotle Mexican Grill, Inc. ("Chipotle" or "Defendant") agreed to pay Plaintiffs' reasonable attorneys' fees and costs in all of these related cases. (Doc. 182, Ex. A ¶¶ 2.1.C.1, 2.1.C.6.)
10. As of July 2011, none of the Chipotle locations in California had the type of wall that formed the basis for these suits.
11. The twenty-one named plaintiffs collectively recovered $225,000 in damages for their individual claims.
12. On July 17, 2012, the Court amended a prior judgment in the individual Antoninetti case, awarding $545,079.05 in attorneys fees and costs. (No. 05-cv-1660, Doc. 377.) That amount accounted for time and expenses spent litigating the individual Antoninetti case, including time spent opposing certiorari to the Supreme Court, and time spent on remand through the date of the award. On December 26, 2012, the plaintiff was awarded an additional $353,469.95 for fees and costs related to proceedings before the Ninth Circuit. (No. 05-cv-1660, Doc. 382.) Thus, counsel has already been awarded $898,549 in fees and expenses related to these cases.
13. The pending motion addresses only heretofore uncompensated fees and costs for work on the putative class actions pursuant to the settlement agreement.
Under 42 U.S.C. § 12205, the "prevailing party" in an Americans with Disabilities Act ("ADA") action may, in the Court's discretion, recover "reasonable attorney's fees, including litigation expenses, and costs." See also 28 C.F.R. § 36.505. The prevailing plaintiff is also entitled to fees and costs under California's applicable disability access laws. See Cal. Civ.Code §§ 52(a). The amount of the prevailing party's reasonable attorneys' fees is calculated
There is a strong presumption that the lodestar figure represents a reasonable fee award. Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir.1994); United Steelworkers, 896 F.2d at 407 (holding that, absent competent rebuttal evidence or a finding that counsels' rates are unwarranted by their level of performance, the requested rates are presumed reasonable); Stonebrae L.P. v. Toll Bros., 521 Fed.Appx. 592, 595 (9th Cir.2013) ("Where, as here, a party achieves an excellent result, the court should refuse to reduce the lodestar amount."). Yet courts may adjust the lodestar figure upward or downward based upon the factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975): (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the
To call the record with respect to this motion voluminous would be an understatement. Plaintiffs' motion is accompanied by ten supporting declarations and a request for judicial notice. Defendant's opposition is supported by two declarations and is accompanied by 75 objections to Plaintiffs' evidence as well as opposition to Plaintiffs' requests for judicial notice. (Doc. 189.) Plaintiffs have filed objections to each of Defendant's declarations as well. (Docs. 192-4, 192-5.) Defendant's objections to Plaintiff's supporting declarations (Docs. 189-9 to 189-15) prompted over a dozen separate replies from Plaintiffs (Docs. 192-207). As a preliminary matter, the Court addresses these requests and objections.
Plaintiffs ask the Court to take notice, pursuant to Rule 201(b) of the Federal Rules of Evidence, of seven exhibits consisting of documents filed in the related individual action, Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. (Doc. 183-6.) Rule 201 provides an avenue for the Court to take judicial notice of reasonably indisputable adjudicative facts. It is not typically a mechanism for acknowledging the content of filings in other proceedings, however. M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir.1983) ("As a general rule, a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it."). The Court therefore takes notice that the individual Antoninetti proceeding exists and that these documents are filed in the docket of that case (No. 05-cv-1660-BTM-WVC). See generally U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) ("[W]e `may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have direct relation to matters at issue.'"); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir.1998); Recent Past Pres. Network v. Latschar, 701 F.Supp.2d 49, 55 (D.D.C.2010).
Plaintiffs' request encompasses three "expert declarations" of Richard Pearl. (Doc. 183, Exs. 4, 5, 6.) As Defendant points out, the Court cannot consider the substance of the declarations as evidence by taking judicial notice of their filing in another case. Baker v. Cal. Dep't of Corrections, 484 Fed.Appx. 130, 132 (9th Cir. 2012). Rule 702 provides the proper avenue
Defendant objects, inter alia, to Exhibits 13, 14, 15, and 16 to the Declaration of Amy B. Vandeveld (Doc. 185) ("Vandeveld Decl."). Ms. Vandeveld asserts that Exhibit 13 evidences costs and litigation expenses incurred in the individual actions as well as the class actions, and that she advanced these costs. (Vandeveld Decl. ¶ 45.) She states that Exhibit 14 is "[m]y billing statement for the Antoninetti class action.... To the best of my knowledge, the billing statement accurately reflects the time I invested, and the costs and expenses incurred, in that case." (Id. ¶ 46.) So too with Exhibit 15 (Perkins class action) and Exhibit 16 (Antoninetti individual cases). (Id. ¶¶ 47, 48.) Finally, Plaintiffs' attorneys state that their billing records are based upon "contemporaneously kept timesheets." (Amy Vandeveld Reply Decl., Doc. 192-2 at 33; Thomas Vandeveld Reply Decl. ¶ 3., Doc. 192-1.) The Court finds that these statements, paired with the affirmation under penalty of perjury, are sufficient to satisfy the personal knowledge and authentication requirements of Rules 602 and 901, and overrules the objections. The hearsay objections are also overruled, as deficiencies in the movants' filings were cured by their reply declarations such that the billing records fall within the business records exception to the hearsay rule. See Davis v. City of San Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992); New Eng. Tech., Inc. v. Sigma Tech Sales, Inc., 2010 WL 3958644, 2010 U.S. Dist. LEXIS 111102 (S.D.Fla. Oct. 7, 2010).
The parties raise numerous other objections based on rules 402, 403, 602, 802, 901, and 1002 of the Federal Rules of Evidence. The parties identify no real prejudice as to admissibility, nor do they cite any authority sustaining, e.g., a Rule 403 objection in the context of a motion for fees and costs.
Plaintiffs' award request is based upon hourly rates of $525 and $620 for Mr. and Ms. Vandeveld, respectively. The Court specifically addressed the proper hourly rate for Ms. Vandeveld in its July 17, 2012 Order in the individual Antoninetti case, finding $400 to be an appropriate rate. (No. 05-1660, Doc. 377 at 10-11.) The Court factored in her expertise and success on appeal, and included an upward adjustment for the contingency nature of the fee and the extended litigation period. Due to the overlapping work and substantial similarity between the parties, the claims, and the attorneys involved — each is virtually identical at all relevant times — the Court adopts its prior analysis here.
The Court finds insufficient evidence that there was an intervening change in the local prevailing rate for disability litigation services (aside from an increase attributable to inflation) during the relevant period. The Court will, however, adjust the recoverable rate to account for inflation. Mr. Pearl and Mr. Hensley agree that there has been an increase, apparently attributable to inflation, in hourly rates. See Hensley Decl. ¶¶ 10, 13, 14B, 18 (opining that the prevailing local hourly rate for ADA work is in the range of $375 to $425). The Court will increase the awarded rate by five percent. This bump is based upon Mr. Pearl's estimate of a 5.1% increase in 2011. (Pearl Decl., Ex. B). The Court will accordingly calculate the lodestar using hourly rates of $420 for Plaintiffs' counsel. The Court finds that Plaintiffs' requested rated of $125 per hour for time spent on tasks typically performed by a paralegal to be reasonable.
During the time period at issue, the parties engaged in negotiations and motion practice before this Court. Plaintiffs' counsel also identified and reached out to the named plaintiffs. Plaintiffs submit declarations of Amy Vandeveld ("A.V. Decl."), lead counsel, and Thomas Vandeveld ("T.V. Decl.") as evidence of the time worked on this case and costs incurred. (Doc. 184.) Defendants submit the declaration of their lead counsel, David R. Sugden ("Sugden Decl."), and the declaration of their expert, William M. Hensley ("Hensley Decl."), in opposition to Plaintiffs' request.
The parties vigorously dispute whether time was reasonably spent litigating the terms of injunctive relief after the Ninth Circuit mandate in the individual Antoninetti case. The parties argued this point before the Court on November 16, 2010, and the Court expressed skepticism as to Plaintiffs' purported need to secure an admission of liability and declaratory relief. (Sugden Decl., Ex. A 18:19-21, 21:8-9, 23:21-24, 24:4-11.) On January 13, 2011, Defendant's counsel confirmed that Chipotle's Encinitas and Pacific Beach locations had lowered their walls in January 2009. (Sugden Decl., Ex. R.) Mr. Sugden also proposed a stipulated injunction, though it was not entirely clear what the scope of that proposal was at the time. On July 3, 2012, the parties again argued the point before the Court at a hearing on fees in the individual Antoninetii case. (Sugden Decl., Ex. B 50-55.)
Plaintiffs moved for class certification on April 18, 2011, arguing that a statewide class was appropriate. (Doc. 88.) On August 28, 2012, the Court denied that motion, finding that the claim for injunctive relief was moot (even after considering the voluntary cessation exception) in light of the Ninth Circuit ruling, the failure to establish the presence of a high counter wall in any California Chipotle since 2009, and Defendant's evidence that no Chipotle in the state had counter walls over 36 inches. (Doc. 145.) The Court also rejected Plaintiffs' argument that their claims for declaratory relief were not moot, because Chipotle had been held in violation of the ADA by the Ninth Circuit and was collaterally estopped from relitigating the issue. (Id. at 5.)
Defendant avers that Plaintiffs' counsel knew that the offending condition at the Pacific Beach and Encinitas restaurants had been remedied by July 2010, when the Ninth Circuit remanded the individual Antoninetti case with instructions to enter an injunction. (Opp'n at 6-7.) For this reason, Defendant argues that the Court should disallow recovery for time spent after July 2010. It appears that Defendant's counsel informed Ms. Vandeveld of the remedial actions on August 9, 2010. (A.V. Decl. ¶¶ 28, 38.) Defendant has also shown that, by January 2011, each representative
Yet Plaintiffs' counsel had more work to do on the putative class actions following remand of the individual Antoninetti case. As Plaintiffs point out, the scope of Defendant's remedial actions was uncertain or unconfirmed through early 2011. And in addition to negotiating a settlement as to damages, Plaintiffs' counsel had to confirm that the offending condition was remedied at the relevant locations, and was unlikely to recur, before accepting a stipulated settlement and dropping the case. The Court will accordingly exclude hours for time wasted litigating these issues, but not going all the way back to July 2010. Rather, it will credit reasonable time spent pursuing class certification, declaratory relief, and injunctive relief through January 18, 2011,
Upon review of the billing statements, the Court finds that, with the partial exception of time spent on class certification issues, there is no clear way to reliably parse out different claims or litigation activities, e.g., pursuit of injunctive or declaratory relief as opposed to damages. The billing records indicate that Ms. Vandeveld spent over 242 hours on class certification issues (and a related motion for reconsideration) separate and apart from other work for the individual plaintiffs (this figure does not include time spent on discovery, depositions, or preparing declarations). Some 194.8 of those hours were spent working on class certification issues between January 18, 2011 and January 14, 2013. Mr. Vandeveld also spent at least 91.4 hours just on class certification issues, 62.4 of which were between January 18, 2011 and June 21, 2013.
Mr. Hensley suggests that the Court exclude 179.1 hours of Mr. Vandeveld's time and 228.1 hours of Ms. Vandeveld's time for unnecessary work or excessive time generally, and with respect to class certification in particular. (See Hensley Decl. ¶¶ 28E, 30D.) Upon review of the billing records, the Court agrees in part with Mr. Henley's recommendation and finds it appropriate to exclude time on that basis. More specifically, the Court finds that time spent on class certification after January 18, 2011 was excessive and unnecessary. The Court accordingly excludes the following time spent on class certification from the lodestar: 194.8 of Ms. Vandeveld's hours and 62.4 of Mr. Vandeveld's hours. The Court finds the remaining time (approximately 77 hours) spent on class certification to be reasonable and includes it in the lodestar.
Reasonable fees and costs associated with the pursuit of attorneys' fees are generally recoverable. McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir. 1995). Plaintiffs request compensation for over 265 hours spent on the pending motion. Mr. Vandeveld's billing report reflects some 59.6 hours spent on the motion, including preparing the moving papers.
Even factoring in the need to respond to objections, this amount of time is beyond the pale, especially at Mr. Vandeveld's rate. See Doran, Disability Rights Enforcement Educ. Servs. v. Corte Madera Inn Best Western, 360 F.Supp.2d 1057, 1062 (N.D.Cal.2005) (reducing award for time spent on fee application where "many of the[] same tasks could have been achieved by referring to previous cases"). Ms. Vandeveld billed at least 125.8 paralegal hours preparing billing statements from September to November 2013. This involved transferring information from timesheets into billing software and "cross-checking files to ensure all time was captured." (A.V. Reply Decl. at 33, Doc. 192-2.) The Court finds much of this work to be duplicative and inefficient, and therefore deducts 35.1 hours from Mr. Vandeveld's bills and 72 hours from Ms. Vandeveld's bill, limiting recovery for time related to the motion sub judice to 100 attorney hours and 60 paralegal hours. The Court believes this provides proper compensation while minimizing the incentive to dwell on a fee motion. See generally Cruz v. Starbucks Corp., 2013 U.S. Dist. LEXIS 79231, 2013 WL 2447862, *8 (N.D.Cal. June 5, 2013) (applying a 50% reduction to time spent on fee motion); Hernandez v. Grullense, 2014 U.S. Dist. LEXIS 61020, 2014 WL 1724356, *13-14 (N.D.Cal. Apr. 30, 2014) (applying a reduction of over 60% to time spent preparing a fee motion); Rodriguez v. Barrita, Inc., ___ F.Supp.3d ___, ___, 2014 WL 2967925, *8, 2014 U.S. Dist. LEXIS 90021, *25 (N.D.Cal. July 1, 2014) (limiting recovery for fees on fees in disability access case to 98.5 combined attorney and paralegal hours).
Counsel should exercise billing judgment in a good faith effort to exclude unnecessary time from a fee application. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. See also Rosenfeld v. United States DOJ, 903 F.Supp.2d 859, 877 (N.D.Cal.2012). Defendant argues that much of the time billed by Plaintiffs' counsel is duplicative or excessive, and that Plaintiffs' billing records do not indicate any reduction for inefficiency, waste, or duplication of effort. (Some, but not all, of the billing entries Defendant complains of have already been addressed by the Court's striking of unreasonable time spent on class certification, supra.) For example, Mr. Hensley opines, and the Court agrees, that Ms. Vandeveld billed 24.9 hours in 2010 on work related to jurisdiction over Perkins that was duplicative of work performed in the Antoninetti class action. (A.V. Decl. Ex. 15, 9-11; Hensley Decl. 38-39, ¶ 30D.)
Defendant contends that Plaintiffs' billing records reflect an excessive amount of conferencing between Plaintiffs' counsel as well as with potential witnesses. (Hensley Decl. ¶ 28C.) The Court agrees that the following entries in Mr. Vandeveld's bill are excessive or inadequately explained: (1) .7 hours on August 20, 2010, (2) .4 hours on August 26, 2010 for an uncorroborated call with Ms. Vandeveld, (3) 2.2 hours spent traveling to meet and meeting
Defendant argues that Plaintiffs' counsel overbills for time spent providing notice to putative class members. (See, e.g., Hensley Decl. ¶ 30H.) Some time spent preparing and distributing notices does appear to be excessive, and there is no indication that Plaintiffs' counsel applied billing judgment to reduce their fees in any way. The Court will accordingly adjust the rate for 98.9 hours Amy Vandeveld spent contacting, corresponding with, or gathering basic information from potential witnesses and class members by assigning that time a paralegal rate of $125 per hour. See generally Davis v. City of San Francisco, 976 F.2d 1536, 1543 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993) ("It is simply 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."). The Court will also adjust 17.3 hours spent communicating notice in July 2013 to the same paralegal rate. An appendix correlating these adjustments to the billing records is appended hereto.
Each side accuses the other of dragging out settlement negotiations. Mr. Hensley also suggests that virtually all of the time Ms. Vandeveld spent on the case from September 6, 2012 to November 1, 2013 was unnecessary. (See Doc. 189-3 at 164-171.) The Court declines to exclude settlement activities from the lodestar beyond the adjustments made to time spent drafting materials or providing notice. The Court credits most of Plaintiffs' time spent negotiating a settlement and satisfying notice requirements.
After applying these exclusions, the lodestar amounts to 1,461.5 attorney hours and 176.2 paralegal hours. A discretionary reduction to the lodestar is one way to address remaining shortcomings in the billing records, e.g., vague timekeeper entries that make it difficult to discern how much time was spent needlessly. See In re Smith, 586 F.3d 1169, 1174 (9th Cir. 2009) ("[T]he district court has the authority to make across-the-board percentage cuts ... in the number of hours claimed... as a practical means of trimming the fat from a fee application.") (citation omitted); Rosenfeld v. United States DOJ, 903 F.Supp.2d 859, 877 (N.D.Cal.2012). To the extent Defendant requests that the Court apply a further reduction on that basis, the Court declines to do so.
Timekeeper Hourly Rate Billed Hourly Rate Awarded Amy Vandeveld $620 $420 Thomas Vandeveld $525 $420 Paralegal $125 $125
Timekeeper Time Billed Reasonable Time Amy Vandeveld (attorney rate) 1,406.8 hours 1,070.9 hours Thomas Vandeveld 494.4 hours 390.6 hours Paralegal 132 hours 176.2 hours
Reasonable Hours Reasonable Hourly Rate Lodestar
Amy Vandeveld 1,070.9 $420 $449,778
Thomas Vandeveld 390.6 $420 $164,052
Paralegal 176.2 $125 $22,025
LODESTAR $635,855
The Court next considers the Kerr factors to determine whether an adjustment to the lodestar is appropriate.
California's Unruh Civil Rights Act provides for a lodestar "multiplier" where the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the lodestar to approximate the fair market rate for the services provided. See Ketchum v. Moses, 24 Cal.4th 1122, 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 (2001). Although the Plaintiff undertook the risk and expense of litigating on a contingent basis over an extended period, the Court has already accounted for that factor in its calculation of the attorneys' reasonable rate. (See No. 05-1660, Doc. 377 at 10-11, Order enhancing hourly rate from $375 to $400 "because of the contingency nature of the fee and the extended length of the litigation.") The Court finds no basis for finding that the representation of the individuals in the Perkins action presented "rare and exceptional" factors warranting a further enhancement under California law since it resulted in a relatively modest settlement in relation to the time expended and because the success of the individual claims was not legally or procedurally complicated in light of the Ninth Circuit ruling in Antoninetti. See Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n. 4 (9th Cir. 2000).
Plaintiffs urge the Court to multiply the loadstar by a factor of 1.5, "which reflects the time involved, the risk involved, and the outstanding success obtained."
The Court acknowledges that Plaintiffs successfully obtained $10,000 in damages for each individual defendant. Beyond that, the Court rejects Plaintiffs' argument. Plaintiffs have not demonstrated that the class litigation had a synergystic effect that yielded better results for the plaintiffs, or any additional nonmonetary relief at all. By their own admission, Plaintiffs' counsel made a tactical decision that enabled them to test the waters with the individual case while the putative class actions were stayed. (See, e.g., Sugden Decl., Ex. B 36:24-37:2 (July 3, 2012 Hr'g Tr.) ("And the other thing ... that was really important in [the individual Antoninetti] case was the declaratory relief that the plaintiff obtained because that will have an impact in the class action case....") Plaintiffs' counsel was so successful that they not only reduced the risks associated with class litigation, they effectively eliminated the need for it. Mr. Antoninetti's win effectively secured the relief sought by the putative class members. If Plaintiffs' counsel had not already been compensated for that feat, the situation would be different. But they have been, and the Court accordingly finds that an enhancement is unwarranted. On this record, any other ruling would countenance double-dipping.
The court should reduce the award if "the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at 439-40, 103 S.Ct. 1933. In considering the extent of the relief obtained, the court "compare[s] the amount of damages sought to the amount awarded." Mercer v. Duke Univ., 401 F.3d 199, 204 (4th Cir.2005). Chipotle asks the Court to reduce the lodestar by 60% based on limited success. With respect to the degree of success, the Court considers "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended...." McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir.2009). In evaluating the degree of success, the Court may consider, but is not limited to, the following factors: the amount and nature of claims the Plaintiff prevailed on compared to those that were dismissed, the amount of damages awarded compared to the amount sought, the amount of damages awarded relative to the amount of attorney's fees sought, and whether the suit conferred a benefit on the public. See id. at 1104-05; McGinnis v. Kentucky Fried Chicken of California, 51 F.3d 805, 810 (9th Cir.1994). Determining an appropriate reduction of the fee request is not a scientific matter. Skaff v. Le Meridien, 2008 WL 4346792, *10-11, 2008 U.S. Dist. LEXIS 123537, *31-32 (C.D.Cal. Sept. 16, 2008). "Rather, it is a calculation based on experience and good sense in light of the factual record." Id. See also Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 904-05 (9th Cir.Or.1995) (affirming 75% reduction of time based on the success
Plaintiffs' initial complaint alleged six counts, including a consumer protection claim and tort claims that were dropped in 2011. Consequently, the settlement, as relevant here, is based on the remaining two counts: the ADA and Unruh Act claims. Plaintiffs sought monetary relief for the named plaintiffs as well as a class of persons similarly situated that was estimated to be some 393,000 Californians (allowing for repeat customers). (Pls.' Mot. for Class Cert. at 11, Doc. 88-1.) As mentioned supra, the Court denied class certification on those claims. Although Plaintiffs' counsel secured an excellent monetary award with respect to each individual plaintiff, the plaintiffs here enjoy no nonmonetary benefit that they did not have following the Ninth Circuit ruling in the individual Antoninetti case. See Betancourt v. Giuliani, 325 F.Supp.2d 330, 330-31, 335 (S.D.N.Y.2004) (reducing plaintiff's attorney fee award where his civil rights class action failed to obtain much relief sought, including the certification of a class).
While the Antoninetti litigation conferred a benefit on the public, that benefit arose principally from the work leading to the Ninth Circuit ruling, not from this case. There has been no such nonmonetary success in the cases relevant here. The Court accordingly finds that the putative class actions were only partly successful. Plaintiffs' request for fees amounting to over seven times the amount of relief obtained is thus unwarranted.
In Antoninetti, this Court entered a 25% reduction based upon the failure of plaintiff's claim for damages arising from litigation-related visits. (No. 05-1660, Doc. 377 at 6 n. 4.) Here, the results are also mixed — the damages claims successfully resulted in $10,000 payouts totaling $225,000, but Plaintiffs dropped their tort claims in 2011, and their the pursuit of declaratory relief, class certification, and an injunction failed. Thus, the work performed by Plaintiffs' counsel in the putative class actions failed to obtain relief for any putative class members beyond those individually named. Because Plaintiffs could have achieved the same result without their post-remand pursuit of class certification, injunctive relief, and a declaratory judgment, a large amount of time spent on the case at issue here was not "reasonably necessary to obtain the relief that was ultimately obtained." Rodriguez, ___ F.Supp.3d at ___, 2014 WL 2967925, *11, 2014 U.S. Dist. LEXIS 90021, *40 (quoting Velez v. Wynne, 220 Fed.Appx. 512, 513 (9th Cir.2007)). For these reasons, the lodestar is excessive relative to the success achieved by these plaintiffs, even after striking the excessive time spent on class certification. The Court therefore applies a fifty percent reduction to the lodestar and will enter a total fee award of
Plaintiffs' request an award of litigation expenses and costs in the amount of $19,824.77. That request is supported by expense reports accompanying the declarations of Plaintiffs' counsel. Defendant does not oppose this request. The Court accordingly finds the requested amount to be adequately documented and reasonable under the circumstances.
The Court has carefully considered Plaintiffs' motion for attorneys' fees and costs in light of the Kerr factors, including the time required, the novelty and difficulty of the questions involved, and the results obtained. Having done so, the motion is hereby
Amy Vandeveld Invoice: Paralegal Tasks Paralegal Work Hours Page 49 0.1 Page 49 0.5 Page 49 0.1 Page 53 4.2 Page 53 3.2 Page 54 0.2 Page 54 2.1 Page 54 0.5 Page 54 3.2 Page 54 6.8 Page 54 5.2 Page 54 5.3 Page 54 1.8 Page 54 1.5 Page 54 1.6 Page 55 2.4 Page 55 0.8 Page 55 4.5 Page 56 0.5 Page 56 3.8 Page 56 1 Page 57 2.7 Page 57 4.3 Page 58 2.1 Page 58 0.5 Page 58 2.1 Page 58 1.4 Page 59 1.2
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