RICHARD SEEBORG, District Judge.
In this disability access case, prevailing plaintiff Armando Rodriguez seeks
The calculation of a reasonable fee award involves a two-step process. Fisher v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir.2000). First, the court calculates the presumptive fee award, also known as the "lodestar figure," by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate. Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Second, in "appropriate cases" the court may enhance or reduce the lodestar figure based on an evaluation of the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.1975), that were not taken into account in the initial lodestar calculation. Intel Corp. v. Terabyte Intern., Inc., 6 F.3d 614, 622 (9th Cir.1993) (citation omitted).
As a threshold matter, it is undisputed that Rodriguez is entitled to attorney fees. A prevailing plaintiff under the ADA "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Barrios v. California Interscholastic Fed'n, 277 F.3d 1128, 1134 (9th Cir.2002) (quoting Hensley, 461 U.S. at 429,103 S.Ct. 1933). Additionally, the California Disabled Persons Act provides for attorney fees to prevailing parties as a matter of right. Cal. Civ.Code § 55. Here, where Rodriguez prevailed under both statutes, defendants do not contest that fees are warranted. The question, rather, is how much.
The fee applicant bears the burden of producing satisfactory evidence "that the requested rates are in line with those prevailing in the community for similar
Celia McGuinness, plaintiff's trial counsel and the lead lawyer on this case, seeks fees at the rate of $550/hour. In support, she submits declarations from four Bay Area disability access attorneys, all of whom attest that McGuinness's requested rate is reasonable for an attorney of her skill, experience, and reputation. McGuinness also furnishes excerpts from numerous cases in this district where the court awarded fees at her then-requested rates. The most recent excerpt is from Hernandez v. Grullense, 2014 WL 1724356 (N.D.Cal. Apr. 30, 2014), where the court approved her request for fees at $495/hour in a motion filed in December 2013.
This fee motion, filed in March 2014, apparently marks the first time McGuinness has requested fees at $550/hour—a rate significantly higher than the $495/hour requested and awarded in other recent cases. See, e.g., Cruz v. Starbucks Corp., 2013 WL 2447862 at *7 (N.D.Cal. June 5, 2013). Defendants, however, do not contest that $550/hour is a reasonable rate for McGuinness in 2014.
Paul Rein, owner of Rein Law Offices and member of the California bar for over forty-five years, requests fees at $645/ hour. In support, plaintiff points to numerous recent court decisions finding this to be an appropriate rate for Rein's services. Within the last fifteen months, four different judges in this district have found $645/hour to be a reasonable rate in light of Rein's skill, reputation, and extensive experience. See Hernandez, 2014 WL 1724356 at *5, Moralez v. Whole Foods Mkt., Inc., 2013 WL 3967639, at *4 (N.D.Cal. July 31, 2013); Cruz, 2013 WL 2447862, at *5; Delson v. CYCT Mgmt. Grp., Inc., 2013 WL 1819265, at *5 (N.D.Cal. Apr. 30, 2013). Indeed, defendants do not contest that $645/hour is a reasonable rate for Rein's services in 2014. Plaintiff's submissions and argument substantiate Rein's request for attorney fees at the reasonable rate of $645/hour.
Catherine Cabalo, plaintiff's third attorney, seeks fees at a rate of $425/hr. Cabalo, a 2001 graduate of the University of Washington, has been working for Rein Law since 2009. Her rate is supported by
Aaron Clefton, a Rein Firm paralegal, requests fees at $200/hour. This rate would mark an increase from several recent cases in this district finding that $175/hour is a reasonable price for Clefton's work. See Hernandez, 2014 WL 1724356, at *4; Cruz, 2013 WL 2447862, at *5. Indeed, in Cruz, the court denied Clefton's request for fees at $200/hour, instead awarding him fees at the rate of $175/hour. Plaintiff claims an increase is warranted to reflect that "few other paralegals. . . possess both [Clefton's] years of experience and his understanding of disability rights law." (Pl. Repl., ECF No. 260, 2:1-2). Indeed, Clefton has been working as a paralegal for more than a decade, spending nine years with Rein Law. In addition, Clefton has attended several semesters of law school and anticipates completing his Juris Doctorate at some point in the future. When Clefton finishes school and becomes a member of the bar, he will doubtlessly be justified in increasing his rate substantially. For now, however, plaintiff's submissions fail to establish that $200/hour is a reasonable rate for Clefton's work as a paralegal. Accordingly, Clefton will be awarded fees at the reasonable rate of $175/hour.
Holly Jaramillo, a Rein Law paralegal with much less experience than Clefton, requests fees at the rate of $135/hour. Defendants do not address, much less rebut, Jaramillo's request. She will accordingly be awarded fees at the reasonable rate of $135/hour.
Defendants maintain it would be unreasonable for plaintiff's attorneys to receive their current rates for litigation that began in 2009 and culminated in a 2014 judgment. They request instead that Rein be awarded $495/hour for all hours worked before 2012 and McGuinness be awarded $495/hour for all hours logged before 2014.
The court has discretion to apply the rates in effect at the time the work was performed. See Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir.1997). It may also award fees at an attorney's current rate where appropriate to compensate for the lengthy delay in receiving payment. See Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). Here, Rein Law put a significant amount of time and effort into litigating Rodriguez's claims, without any promise of payment, in an attempt to vindicate plaintiff's civil rights under federal and state disability law. Nearly five years have passed since the commencement of this case, during which time plaintiff's counsel received no payment for their services. Considering this lengthy delay, the fee award should not be based entirely on counsel's historical rates at the time the work was performed.
At the same time, in a case where more than 1,250 hours were expended by these two attorneys over nearly five years, adjusting
McGuinness will be awarded her 2013 rate ($495) for all hours worked during and before 2013. By paying McGuinness $550/hour for all hours worked in 2014, the fee simultaneously acknowledges the reasonableness of her current rate while guarding against the unreasonable overall fee increase that would occur if the rate was applied to all hours expended in this litigation. Moreover, by applying McGuinness's 2013 rate for hours performed as far back as 2009, the award still accounts for the lengthy delay in receiving payment.
The party seeking fees "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended[.]" Hensley, 461 U.S. at 437, 103 S.Ct. 1933. After the moving party provides evidence of the hours billed, the opposing party has the burden of submitting evidence "challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Gates, 987 F.2d at 1397-98 (citing Blum v. Stenson, 465 U.S. 886, 892 n. 5, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Even if the opposing party has not objected to the time billed, the district court "may not uncritically accept a fee request," but is obligated to review the time billed and assess whether it is reasonable in light of the work performed and the context of the case. Common Cause v. Jones, 235 F.Supp.2d 1076, 1079 (C.D.Cal.2002) (citing Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir.1984)). "Where the documentation of hours is inadequate, the district
As an initial matter, defendants object that plaintiff's counsel could not have reasonably spent more than 1,700 hours prosecuting a disability access case that culminated in a four-day bench trial. Defendants use Rein Law's expertise as a sword against the firm, arguing such seasoned attorneys need not spend so much time on a "relatively straightforward" case like this one. (See Def. Opp., ECF No. 276; 1:7). Indeed, in other cases, judges of this district have noted that Rein Law's expertise in disability access law should allow the firm to work through routine litigation matters in an efficient manner. See Hernandez, 2014 WL 1724356, at *6 ("Given Rein Law's extensive experience litigating ADA cases, Rein Law is expected to efficiently complete the relevant court filings and other tasks necessary to the litigation of this action."); Delson, 2013 WL 1819265, at *8 ("One of the trade offs of being an expert in a specific field of law is the expectation that tasks will be completed with greater efficiency because the knowledge base and resources have already been well-established."). This case was not, however, as straightforward as defendants imply. Although the subject property is small, and while plaintiff's claims were typical for a disability access case, the parties litigated several thorny legal issues involving questions that have yet gone unanswered in the relevant appellate courts. Moreover, unlike Delson and Hernandez, this case took nearly five years to resolve.
As explained below, however, defendants identify several infirmities in plaintiff's billed hours. Rein Law, acknowledging the difficulties of ensuring airtight billing practices over the course of a five-year case, offers to take a 5% overall cut in order to guard against inefficiencies or inconsistencies in its billing practices. (See Pl. Repl., ECF No. 282, 20:2). While the court has discretion to impose a uniform reduction of this sort, it is doubtful that a 5% reduction, or even a 10% reduction, would result in a reasonable fee award. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir.2008) (district court can impose a unilateral 10% fee haircut "based on its exercise of discretion and without a more specific explanation"). Accordingly, defendants' objections will be addressed one by one, resulting in discrete reductions where appropriate.
Defendants argue that plaintiff's attorneys spent too much time conferencing with one another. In sum, Rodriguez's counsel claims to have spent 92.8 hours in attorney co-conference. Much of this time is attributable to Rein, who reportedly spent 38.8 hours (24% of his total time) conferencing with co-counsel. In several other cases in this district, Rein Law's fee requests have been reduced to account for excessive co-conferencing. In Cruz, the court noted that while it was "reluctant to second-guess the staffing decisions of Plaintiff's counsel, given that the approach taken by counsel was successful," it nonetheless was "troubled by the fact that nearly half of the time billed by McGuinness was spent in meetings and conferences with co-counsel and Rein spent over 20% of his time in conferences with co-counsel." 2013 WL 2447862, at *8. To account for these concerns, the court reduced
More troubling, however, is that many of plaintiff's "conferencing" entries simply do not match up. Of Rein's 38.8 hours spent conferencing with others at his firm, 24.4 of those hours cannot be verified by a matching entry from another firm member or employee. If Rein spent this time "conferencing" with another attorney or paralegal at Rein Law, defendants could reasonably expect the conference to be corroborated by the billing entries of another person working on the matter. Plaintiff's attorneys do not dispute that Rein's conferencing hours do not match those of his co-counsel. Instead, they contend that these billing disparities "evidence[ ] billing judgment," resulting "in a cost savings" for defendants. (Pl. Repl., ECF No. 282, 6:15). At oral argument and in a supplemental declaration, McGuinness explained that in an attempt to craft a reasonable fee request, she chose not to bill for certain hours spent conferencing with Rein. This may be so, but the resultant gap is simply too large to be explained away by these supplemental statements when the prevailing party carries the burden of showing that his counsel's hours were reasonable. "While the exercise of billing judgment is generally a good thing, the benefits are not realized in cases like this where Rein Law evidently exercised billing judgment in favor of its most expensive attorney." Hernandez, 2014 WL 1724356, at *11.
None of this is to suggest that some impropriety is afoot in the Rein Law conference room. There is no reason McGuinness should not be taken at her word that these billing disparities can be explained by her own restraint and judgment. This does not mean, however, that Rein's declarations automatically are sufficient to demonstrate his entitlement to all claimed fees. This is especially so where, as here, defendants point to significant disparities in counsel's bills. Even had defendants failed to challenge this particular billing practice, it would be improper to "uncritically accept" Rodriguez's free request. See Common Cause, 235 F.Supp.2d at 1079. In light of plaintiff's failure to meet his burden of documenting the appropriate hours expended, see Hensley, 461 U.S. at 437, 103 S.Ct. 1933, Rein's conferencing time will be reduced by 24.4 hours. So, too, will 2.6 uncorroborated hours of Cabalo's conference time.
Plaintiff's counsel spent 11.9 hours investigating defendants' criminal histories. Defendants contend this time should be excluded entirely, as all evidence of defendants' prior convictions was excluded at trial. It was reasonable, however, for plaintiff to investigate defendants' criminal records. Although the evidence was ultimately excluded at trial, plaintiff initially did not know what defendants' records would reveal. Had defendants been convicted more recently, or had the convictions stemmed from acts of dishonesty, evidence of defendants' criminal histories may have been admissible. Accordingly, plaintiff cannot be faulted, as a categorical matter, for conducting criminal history research in anticipation of trial.
Paralegal Clefton spent 40.9 hours attending depositions and pre-trial conferences. In Cruz, the court barred Clefton from being paid for attending a case management conference, finding that Rein Law "ha[d] not offered any explanation" for Clefton's need to attend such an event. 2013 WL 2447862, at *7. Here, by contrast, plaintiff's counsel provides reasons for Clefton's attendance at these non-trial events. McGuinness declares that Clefton was very helpful in making important documents available and taking extensive notes in the "document-intense" depositions in this case. (Pl. Repl., ECF No. 282, 4:10). According to McGuinness, Clefton's attendance at the pretrial conference was "necessary" for trial preparation. (Id. at 4:17). In the context of this complicated, fact-intensive case, plaintiff's submissions are sufficient to substantiate his claim that it was reasonable for Clefton to spend 40.9 hours assisting at these events.
On August 7, 2013, Catherine Cabalo spent 3.5 hours observing an unrelated trial in order to "evaluate and determine motions in limine and jury instructions, etc." It would be unreasonable for defendants to pay well over $1,000 for Cabalo's educational field trip to the courtroom. These 3.5 hours will be deducted from Cabalo's time.
In Delson, the court concluded that Rein Law engaged in duplicative billing practices relating to mediation preparation and attendance. 2013 WL 1819265, at *7. The court in Hernandez made a similar finding, holding it was "excessive" for Rein and Cabalo to spend 15.5 hours and 20.8 hours, respectively, to prepare for and attend mediation. 2014 WL 1724356, at *12. Defendants argue that here, as in those cases, Rein Law engaged in extensive overbilling surrounding two alternative dispute resolution events: (i) the June 11, 2010 mediation and (ii) the September 13, 20102 settlement conference.
Three Rein Firm attorneys worked on the 2010 mediation: McGuinness (14.6 hours), Rein (5.5 hours), and Cabalo (7.6 hours). Defendants credit McGuinness's hours, but argue that Rein and Cabalo should not be paid for their preparation and attendance. Defendants urge an adoption of the approach in Delson, where the court declined to credit Rein's hours after finding that only one attorney was required to prepare for (and attend) mediation:
2013 WL 1819265, at *7. Similarly, in Hernandez, the court questioned "the need for both Rein and Cabalo to prepare for and attend the mediation," especially in light of Cabalo's extensive experience. 2014 WL 1724356, at *12. Here, too, plaintiff does little to explain why three attorneys were needed to prepare for this mediation. Unlike Delson, though, this case cannot be fairly classified as "not complicated."
Two attorneys and one paralegal worked on the 2012 settlement conference: Rein (10.3 hours preparation and 6.7 hours attendance), McGuinness (18.5 hours preparation and 4.8 hours attendance), and Clefton (10.3 hours preparation and 7 hours attendance). In sum, Rein Law spent 39.1 hours preparing for and 18.5 hours attending the six-hour conference, resulting in a request exceeding $25,000 in related fees. Even assuming it was reasonable for two attorneys to attend the conference, plaintiff makes little attempt to explain why two highly-experienced attorneys and a paralegal needed to spend so much time preparing for the conference. Although, as previously noted, this case was more complex than either Delson or Hernandez, it was still unreasonable for McGuinness—even as lead attorney in this case—to spend 18.5 hours preparing for the event, especially when firm owner Paul Rein spent 10.3 hours of his time doing the same. Rein's and McGuinness's requests will each be reduced by 6 hours to account for excessive time spent preparing for the settlement conference. Clefton's time will be reduced by 10 hours. While this adjustment is not as severe as those imposed in Hernandez and Delson, it reflects counsel's failure to substantiate the excessive amount of attorney and paralegal time spent preparing for and attending the event.
Defendants spend pages complaining that plaintiff's counsel spent too much time researching and drafting various motions, including the November 2011 motion for summary judgment (131.4 hours), the March 2012 motion for reconsideration (34.9 hours), the 2013 discovery motions (76.9 hours), and the present attorney fees motion (106.7 hours). In support of this argument, defendants provide figures demonstrating that their attorneys spent much less time on the same or similar motions. Such comparisons to opposing counsel's litigation practices are not particularly helpful, especially given the ultimate result. "By and large, the court should defer to the winning lawyer's professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker." Moreno, 534 F.3d at 1112. Accordingly, even though plaintiff did not prevail on all the motions mentioned above, defendants fail to provide a good reason to question the facial reasonableness of the time spent on those motions.
There is, however, one exception—the present motion for attorney fees, for which Rein Law enlisted three attorneys and two paralegals for a total of 123.5 hours of work: McGuinness (72.3 hours), Rein (8.9 hours), Cabalo (1.1 hours), Clefton (40.9 hours), and Jaramillo (.3 hours).
In light of these discrete reductions for excessive, redundant, or otherwise unsubstantiated entries, the lodestar is calculated based on the following hours:
Hours Billed Hours Reduced Hours Assessed Rate Lodestar Fees
Paul Rein 153.6 35.4 118.2 645/hr $72,239
McGuinness (2009- 1,043.8 6 1037.8 495/hr $513,711
2013)
McGuiness (2014) 79.6 20 59.6 550/hr $32,780
Catherine Cabalo 80.3 11.1 69.2 425/hr $29,410
Aaron Clefton 452.9 10 442.9 175/hr $77,507.50
Holly Jamarillo 39.7 0 39.7 135/hr $5,359.50
TOTAL $731,007
Both parties request an adjustment to the lodestar, albeit in different directions and under different legal authority. Plaintiff, invoking the state law "multiplier," seeks to increase the unadorned lodestar award by 50%. Defendants, looking to federal law, contend the lodestar figure should be reduced due to plaintiff's only partial success in this case.
Unlike federal law, the CDPA and Unruh Act allows a lodestar "multiplier" when the litigation "involved a contingent risk or required extraordinary legal
According to plaintiff, this is the sort of "rare and exceptional" case warranting a fee enhancement under California law. See Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n. 4 (9th Cir.2000) (citation omitted). In particular, Rein Law notes that it took on a "legally risky" case, litigated it on a contingent fee basis for nearly five years, and "ultimately achieved all the remedies [plaintiff] sought." (Pl. Mot., ECF No. 260, 13:9-10). Indeed, these are the sort of factors that could support a fee enhancement under California law.
Id. at 1138-39, 104 Cal.Rptr.2d 377, 17 P.3d 735. In the same respect, where the relevant legal market already compensates for contingency risk, it would be inappropriate
In short, no fee enhancement is warranted here, where the skill of counsel, the difficulty and novelty of the underlying legal issues, and the contingent nature of the fee award are already baked into the unadorned lodestar.
Defendants also request a lodestar adjustment, but in the opposite direction, arguing plaintiff only achieved partial success on his claims. Where a prevailing party achieves limited success, "the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Hensley, 461 U.S. at 436, 103 S.Ct. 1933. In such circumstances, the court has discretion to lower the fee award. "There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account
Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir.1986) (quoting Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933).
Of the numerous barriers plaintiff challenged at trial, he obtained injunctive relief as to three—the inaccessible restaurant entrance and the two "restroom barriers."
Under the first Thorne step, plaintiff's successful and unsuccessful claims are related. "[R]elated claims involve a common core of facts or are based on related legal theories." Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir.2003) (emphasis in original).
Because the successful and unsuccessful claims are related, "the district court must focus on whether the hours spent in litigation were reasonably necessary to obtain the relief that was ultimately obtained." Velez v. Wynne, 220 Fed. Appx. 512, 513 (9th Cir.2007). All three of plaintiff's successful ADA claims were raised in his initial complaint. (ECF No. 1). The same claims also triggered compensatory damages under the CDPA and the Unruh Act. The amended complaint, by contrast, included various claims that were ultimately unsuccessful. Moreover, although the amended complaint introduced barriers that were ultimately found to be in violation of state law, those barriers did not affect plaintiff's monetary award. (See ECF No. 250, 34:16) ("[D]efendants' cumulative violations of the CDPA and the Unruh Act do not compound Rodriguez's statutory minimum damages.") Nor did plaintiff gain anything from his attempt to challenge the April 2013 barriers in this lawsuit.
Although it is not possible to parse out the specific time spent on plaintiff's unsuccessful allegations, several pieces of this litigation can be attributed in part to the pursuit of those claims. Plaintiff did not attempt to amend his complaint until discovery had closed and motions for summary judgment had been adjudicated, so defendants opposed plaintiff's late amendment, prompting motion practice. After leave to amend was granted, discovery was reopened. New discovery disputes arose, prompting plaintiff to file a motion to compel.
At the same time, Rodriguez's limited success must be viewed in light of the benefit he obtained for other disabled individuals. "In setting a reasonable fee award . . . [a] district court should consider whether, and to what extent, [the plaintiff's] suit benefitted the public." McCown v. City of Fontana, 565 F.3d 1097, 1105 (9th Cir.2009). This case brought about remediation and injunctive relief that will benefit La Victoria customers for years to come. Rodriguez's suit may also encourage other business owners in the community to ensure that their public accommodations are compliant with federal and state disability access law. Even considering these achievements, however, the results were not sufficiently "excellent" to warrant full payment according to the lodestar. See Hensley, 461 U.S. at 435, 103 S.Ct. 1933 (full award is warranted despite partial success where plaintiff obtained "excellent" results). While a plaintiff need not obtain all requested relief in order to achieve excellent results, see Dang v. Cross, 422 F.3d 800, 813 (9th Cir.2005), there is too great a mismatch between the results obtained and the relief sought to warrant a full award here, where a significant chunk of the litigation flowed from plaintiff's unsuccessful attempt to remedy certain other barriers.
In light of the limits on plaintiff's success, but taking into account the public benefit achieved by his case, a 20% lodestar reduction is warranted. This adjustment reflects that while the enormous time spent on this litigation was in some respects out of proportion to the results ultimately obtained, counsel nonetheless achieved significant success for their client and the public. If a district court has discretion to impose an across-the-board ten percent fee "haircut" with little to no explanation, Moreno v. City of Sacramento, 534 F.3d at 1112, even where the plaintiff achieves "excellent" results, id. at 1114, it is reasonable here to reduce plaintiff's overall fees by twenty percent, after accounting for the discrete lodestar reductions identified above, due to the constraints on plaintiff's overall success.
Plaintiff further requests $248,671.84 in costs and litigation expenses.
Plaintiff's approach to seeking costs and expenses is puzzling. If counsel knew the Clerk would only approve taxable costs, it is unclear why plaintiff's bill of costs included so many expenses that are plainly not taxable under Civil Local Rule 54. At the hearing on this motion, plaintiffs counsel explained that she had taken a "belt and suspenders" approach by seeking all costs and expenses from the court and the Clerk alike. If counsel had taken all prudent precautions, however, she would have also sought review of the Clerk's decision in a timely fashion, thereby precluding defendants from making the reasonable argument that Rodriguez procedurally defaulted on his request for non-taxable
Fortunately for plaintiff, the timeliness requirements of Rule 54(d) are "not jurisdictional." U.S., ex rel. Meyer v. Horizon Health Corp., 2007 WL 518607 (N.D.Cal. Feb. 13, 2007). Just as a court has discretion to consider an untimely motion for costs, Walker v. California, 200 F.3d 624, 626 (9th Cir.1999), it also may review an untimely appeal of the Clerk's assessment.
The majority of plaintiff's claimed expenses—$197,976.11—is attributable to witness fees. Of that amount, more than half—$111,133.82—went to Jonathan Adler, a disability access expert for Access Compliance Services. Defendants object that Adler spent a significant amount of time performing "duplicative legal work." (Def. Objections, ECF No. 268, 8:26). Indeed, Adler logged many hours researching relevant statutes and regulations and assisting Rein Law in crafting its briefing and trial strategy. Defendants fail to explain, however, why this is impermissible as a categorical matter.
Numerous of Adler's other entries, however, are more troubling. First, he charged unreasonably high fees for time spent testifying at trial. Although Adler's normal rate is $250/hour, he requests a $2,000/day "Court appearance minimum fee" for trial testimony. If trial lasted seven or eight hours per day, and if Adler sat through each day in full, this might make some sense. On the three days Adler charged this fee, however, trial lasted approximately three hours. See ECF Nos. 234, 235, 239. He therefore seeks $6,000 in "minimum" fees for time spent watching, or testifying in, nine hours of court proceedings. As if that were not enough, Adler seeks an additional ten hours of fees (at his normal rate of $250/ hour) for time spent on those same days preparing for cross-examination and reviewing the testimony of defendants' expert witness.
Unfortunately for plaintiff, these excesses and inaccuracies raise further questions about the veracity and reasonableness of the other $98,321.32 Adler charged in expert fees. As defendants point out, Adler—who lives in Santa Cruz—seeks nearly fifty hours at his regular rate for travel time over the course of this litigation. Given that this case lasted five years and proceeded to trial, it is understandable that Adler needed to travel to make numerous site visits, attend trial, and confer with plaintiff's counsel on various occasions. Nonetheless, the overall amount he seeks—$11,750 for travel time, not counting the mileage reduction he also requests—is excessive. Although it is appropriate
Defendants further object to the expert fees claimed on behalf of Arnold Lerner ($7,700) and Malcolm Roberts ($22,244.23), neither of whom appeared at trial. Because neither expert offered testimony at the trial phase, defendants argue their work was not "crucial or indispensable" to the litigation at hand. See In re Media Vision, 913 F.Supp. at 1367. In Media Vision, the court held that in order to award expert witness fees as litigation expenses to the prevailing party, "the court must find that the expert testimony submitted was `crucial or indispensable' to the litigation at hand." Id. It appears that no court in this district has since used the "crucial or indispensable" formulation to assess the propriety of expert witness fees. Even assuming this standard is applicable here, defendants view it too narrowly. According to plaintiff, both Lerner and Roberts served an important role in the litigation. Lerner, a licensed architect specializing in renovation of historical buildings, was retained to opine on whether installing a wheelchair lift would threaten the historical nature of the subject property. In light of defendants' "historical building" affirmative defense, Lerner's work was crucial to the litigation, even if defendants ultimately chose not to assert that defense at trial. Similarly, Roberts' testimony was rendered unnecessary only because defendants elected to drop a contested issue from their trial argument. Roberts, a forensic accountant, was prepared to offer trial testimony on defendants' financial resources. At trial, defendants stipulated that barrier removal would have been financially readily achievable, thereby obviating the need for Roberts to testify. Only one reduction is warranted for these experts: $750, to account for Roberts' retainer, which was supposed to be reduced from his final invoice. Plaintiff's submissions do not indicate that the retainer was removed from Roberts' fees.
Lastly, defendants dispute the $47,583 in expert witness fees claimed on behalf of Karl Danz, who testified at trial regarding the feasibility of a wheelchair lift. Although plaintiff won injunctive relief requiring the installation of a lift, he did so under state law, not the ADA. Defendants argue, and plaintiff does not dispute, that unlike the ADA, the CDPA and Unruh Act do not provide for out-of-pocket litigation expenses. According to defendants, Rodriguez is therefore precluded from recovering expert costs pertaining to the installation of a wheelchair lift. Not all of Danz's fees, however, are attributable to his work regarding that device. He also prepared an "evidence-based cost estimate for removal of interior barriers in the restroom and restaurant." (Pl. Repl., ECF No. 282, 16:19-20). Although most of the interior barriers were mooted for purposes of plaintiff's ADA claim, Rodriguez succeeded on two restroom barrier ADA claims at trial. Although it appears
Defendants contend they should not be obligated to pay for all of plaintiff's travel costs, arguing that several such expenses are "not [of the sort] normally charged to a fee paying client." (Def. Objections, ECF No. 268, 14:27). As a general matter, an abundance of case law counsels otherwise. See Davis, 976 F.2d at 1556; Oldoerp, 2014 WL 2621202, at *8 (citing numerous cases in this district noting the "prevailing practice" of passing along attorney travel expenses to client). Defendants point out, however, that of the $2,258.87 plaintiff claims in travel expenses, only $1,510.42 can be substantiated by supporting documentation. In his reply, plaintiff reduces his cost request to $1,510.42. Accordingly, no further reduction to plaintiff's travel expenses is warranted.
Plaintiff also claims $13,834.93 in Westlaw charges for legal research. Upon review of plaintiff's argument and supporting declaration, this is entirely reasonable. So, too, was plaintiff's choice to hire an investigator to perform site surveillance and conduct criminal history research. Similarly, in a case of this scope and duration, defendants are in a poor position to second-guess plaintiff's choice to incur more than $10,000 in copying costs. A reduction is warranted, however, for plaintiff's deposition video recordings. Of plaintiff's $17,491.90 in deposition transcript expenses, the Clerk allowed $12,341.93 as taxable costs. Despite defendants' specific objection that no deposition recordings were used at trial, plaintiff makes no attempt to explain why the remaining costs, apparently attributable to video recording, were warranted. Accordingly, $5,131.08 is reduced from plaintiff's requested costs.
Defendants argue that plaintiff's non-taxable litigation expenses, like his attorney fees, should be reduced to reflect his lack of complete success in this action. Plaintiff rejects this argument, contending that "[a] prevailing party is entitled to recover all his reasonable costs and litigations expenses without qualification." (Pl. Repl., ECF No. 282, 11:24-25) (emphasis added). In support, plaintiff invokes one statute (42 U.S.C. § 12205), one federal regulation (28 C.F.R. § 36.505), and one Federal Rule of Civil Procedure (Rule 54), none of which teach that plaintiff's entitlement to costs and expenses is absolute. As described above, see n. 22, the ADA makes clear that costs and expenses are allowable at the court's discretion. See 42 U.S.C. § 12205. The federal regulation provides the same. See 28 C.F.R. § 36.505. Rule 54, meanwhile, mandates only that costs "should be allowed to the prevailing party" unless a court order, federal statute, or another Federal Rule provides otherwise. Indeed, costs, as they should, have been awarded in this case.
If a court can properly consider the plaintiff's degree of success when awarding attorney fees, see Hensley, 461 U.S. at 436, 103 S.Ct. 1933, it may do the same when awarding litigation expenses under fee-shifting statutes like the ADA. Pierce v. Cnty. of Orange, 905 F.Supp.2d 1017, 1048 (C.D.Cal.2012). Indeed, the ADA recognizes that litigation expenses are part of a reasonable attorney fee. See 42 U.S.C. § 12205 (court has discretion to allow "a reasonable attorney's fee, including litigation expenses. . . .") (emphasis added). See also 28 C.F.R. § 36.505 (same). Even where fee-shifting statutes do not explicitly mention litigation expenses, the Ninth Circuit has "repeatedly" held that a prevailing plaintiff can recover such expenses, Grove v. Wells Fargo Fin. California, Inc., 606 F.3d 577, 580 (9th Cir.2010), reasoning that non-taxable costs are part of a reasonable attorney fee. See Davis, 976 F.2d at 1556 ("the courts have long held [that certain non-taxable costs] can be awarded as part of a reasonable attorneys' fee since they are typically charged to paying clients by private attorneys"). Because litigation expenses are included as part of the attorney fee recoverable under the ADA, there is no apparent reason why, as plaintiff suggests here, those expenses should be exempt from the partial success reduction that is available for fees generally. Under Rodriguez's view, a plaintiff who prevails on one claim but loses on twenty could nonetheless collect litigation expenses underlying all claims. While such a result might be sensible under the right circumstances, it would make little sense if courts were powerless to reduce expenses in order to ensure a fee award commensurate with the relief obtained. Accordingly, as with plaintiff's reasonable fees, his reasonable litigation expenses are reduced by twenty percent. After accounting for the discrete reductions imposed above, this reduction brings plaintiff's recoverable out-of-pocket litigation expenses to $155,356.51.
Plaintiff's motion for fees, costs, and expenses is granted, but he is not entitled to the full amount he seeks. Defendants shall pay plaintiff $584,805.60 in attorney fees, $17,991.84 in taxable costs assessed by the Clerk, and $155,356.45 in litigation expenses. In total, plaintiff is entitled to $758,153.89 in fees, costs, and expenses.
IT IS SO ORDERED.
42 U.S.C. § 12205 (emphasis added). Moreover, even if his right to costs under the statute were absolute, plaintiff is wrong to argue that the statute trumps the Federal Rules of Civil Procedure in this instance. He relies on Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir.2001), wherein the Ninth Circuit held that "[w]hen the federal statute forming the basis for the action has an express provision governing costs . . . that provision controls over the federal rules." Id. at 1190. The circumstances in Brown are distinguishable. There, the district judge denied the prevailing plaintiff costs without offering any explanation whatsoever. At the time, Rule 54 (which has since been amended) stated that costs are due "as of course to the prevailing party unless the court otherwise directs." Id. The Ninth Circuit held that this language did not vest the judge with discretion to deny costs, without explanation, where the statute provides otherwise. It remanded to the district court with orders to consider the plaintiff's request for costs.
