1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 BYRON CHAPMAN, No. 2:17-cv-1745 WBS CKD 13 Plaintiff, 14 v. MEMORANDUM & ORDER RE:

PLAINTIFF’S MOTION FOR

15 MARK C. JACOBS, ATTORNEYS’ FEES, COSTS, AND

LITIGATION EXPENSES

16 Defendant. 17 18 ----oo0oo---- 19 Before the court is plaintiff’s Motion for Reasonable 20 Attorneys’ Fees, Including Costs and Litigation Expenses. 21 (Docket No. 29.) Plaintiff Byron Chapman is a physically 22 handicapped person who brought this action based on barriers he 23 encountered at defendant Mark Jacob’s law office. Plaintiff 24 alleged violations of the Americans with Disabilities Act 25 (“ADA”), 42 U.S.C. § 12101 et seq., California Health & Safety 26 Code § 19955, and the California Unruh Civil Rights Act, 27 California Civil Code § 51, et seq. The parties settled the case 28 and defendant agreed that plaintiff, as a prevailing party, is 1 entitled to reasonable attorney’s fees and costs, as to be 2 determined by the court. This matter was taken under submission 3 pursuant to Local Rule 230(g). 4 “The ADA authorizes a court to award attorneys’ fees, 5 litigation expenses, and costs to a prevailing party.” Lovell v. 6 Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002); see 42 U.S.C. § 7 12205. The court also may award attorney’s fees to the 8 prevailing party in a suit brought under the Unruh Act. See Cal. 9 Civ. Code §§ 52(a) & 55.55. 10 The court calculates the reasonable amount of 11 attorney’s fees by following a two-step process. First, the 12 court determines the lodestar calculation -- “the number of hours 13 reasonably expended on the litigation multiplied by a reasonable 14 hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). 15 Second, the court may adjust the lodestar figure “pursuant to a 16 variety of factors.” Gonzalez v. City of Maywood, 729 F.3d 1196, 17 1209 (9th Cir. 2013) (citation and internal punctuation omitted). 18 There is a strong presumption that the lodestar amount is 19 reasonable. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 20 (9th Cir. 2000). In determining the size of an appropriate fee 21 award, the court need not “achieve auditing perfection.” Fox v. 22 Vice, 563 U.S. 826, 838 (2011). The court may use estimates and 23 “take into account [its] overall sense of a suit” to determine a 24 reasonable attorney’s fee. Id. 25 I. Lodestar Computation 26 A. Reasonable Number of Hours 27 “The prevailing party has the burden of submitting 28 billing records to establish that the number of hours it has 1 requested are reasonable.” Gonzalez, 729 F.3d at 1202. The 2 court may reduce the hours “where documentation of the hours is 3 inadequate; if the case was overstaffed and hours are duplicated; 4 [or] if the hours expended are deemed excessive or otherwise 5 unnecessary.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 6 1210 (9th Cir. 1986). 7 Plaintiff submitted a billing summary itemizing time 8 spent by attorneys Thomas Frankovich and Amanda Lockhart. (Decl. 9 of Thomas Frankovich (“Frankovich Decl.”), Ex. F (Docket No. 30- 10 4).) Plaintiff requests a total of $62,050 in attorney’s fees 11 for 87 hours of work. (Id.) The billing summary shows that 12 Frankovich billed 79 hours and Lockhart billed 8 hours, though 13 defendant maintains that numerous time entries are excessive, 14 redundant, unnecessary, or otherwise more appropriately performed 15 by non-billing staff. 16 Frankovich’s time sheet proves to be of little help to 17 the court. He does not indicate whether the time for the 18 individual entries is listed in hours or minutes. If the time 19 indicated is in hours, the individual entries add up to a total 20 number of hours far greater than the 79 hours he claims. Indeed, 21 it appears to the court that many of these time entries are 22 missing decimal points or otherwise overestimated. However, the 23 court cannot discern which entries are listed incorrectly and in 24 which ways. Due to these deficiencies with Frankovich’s time 25 sheet, the court in its discretion takes a holistic approach in 26 examining his claimed entries. See Fox, 563 U.S. at 838-39. 27 Taking this approach, the court reduces Frankovich’s 28 total time spent on this case, including the fee application, to 1 39 hours, which is far more consistent with the expectation he 2 set at the settlement conference.1 (See Decl. of Elizabeth 3 Stallard ¶ 10 (Docket No. 35-1).) Moreover, looking at the 4 individual entries, it appears that Frankovich overbilled for his 5 work in this case. He has billed for clerical tasks, such as 6 phone calls and emails to the court, for which he cannot recover, 7 at least not a normal attorney’s billing rate. See Missouri v. 8 Jenkins by Agyei, 491 U.S. 274, 288 & n.10(1989); Yates v. Vishal 9 Corp., No. 11-CV-00643-JCS, 2014 WL 572528, at *6 (N.D. Cal. Feb. 10 4, 2014) (disallowing fees billed for purely clerical or 11 secretarial tasks). He has also overbilled for filings, like 12 plaintiff’s complaint, remedial letters, and the pretrial 13 statement, that appear to be boilerplate and resemble what he has 14 produced in similar cases. See Johnson v. Xinliang Bai, No. 15 2:16-cv-1698 WBS GGH, 2017 WL 3334006, at *2 (E.D. Cal. Aug. 4, 16 2017) (reducing time entries under similar circumstances). 17 Further, he has billed a number of hours related to his 18 consultation with Scottlynn Hubbard, a purported expert on 19 attorney’s fees. As will be explained below, the court will not 20 allow plaintiff to recover for any time related to Hubbard’s work

21 1 On April 25, 2019, this court issued an order requiring 22 plaintiff’s attorneys to bring to the settlement conference, among other things, “all time sheets showing hours worked.” 23 (Docket No. 27 (emphasis added).) Now, after the case has settled, Frankovich claims that he has discovered additional 24 entries that were “tucked away” and not presented at the settlement conference. (See Frankovich Decl. ¶ 68.) To avoid 25 prejudice to defendant, the court will honor the expectation plaintiff’s counsel set at the settlement conference. See 26 Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 27 (2017) (federal courts have the inherent authority to manage their own affairs and regulate conduct which abuses the judicial 28 process) (citations and quotations omitted). 1 in this case. 2 By contrast, the individual time entries presented for 3 Lockhart are much easier to discern and add up to the eight hours 4 she claims. While defendant maintains that Lockhart spent some 5 of her time on purely secretarial tasks, the court finds the 6 claimed time to be reasonably expended on the case. For 7 instance, any time Lockhart spent on emails appears to relate to 8 the merits of plaintiff’s case. 9 Having made the above reductions, the court finds that 10 plaintiffs’ attorneys reasonably expended a total of 47 hours. 11 B. Reasonable Hourly Rate 12 The reasonable hourly rate is determined according to 13 “the prevailing market rates in the relevant community,” Blum v. 14 Stenson, 465 U.S. 866, 895 (1984), “for similar work performed by 15 attorneys of comparable skill, experience, and reputation,” 16 Chalmers, 796 F.2d at 1210-11. The relevant legal community “is 17 the forum in which the district court sits,” Prison Legal News 18 v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010), which here 19 is the Sacramento Division of the Eastern District of California. 20 The prevailing party has the burden of producing 21 sufficient evidence that its “requested rates are in line with 22 those prevailing in the community for similar services by lawyers 23 of reasonably comparable skill, experience and reputation.” 24 Blum, 465 U.S. at 895 n.11. “The hourly rate for successful 25 civil rights attorneys is to be calculated by considering certain 26 factors, including the novelty and difficulty of the issues, the 27 skill required to try the case, whether or not the fee is 28 contingent, the experience held by counsel and fee awards in 1 similar cases.” Moreno v. City of Sacramento, 534 F.3d 1106, 2 1114 (9th Cir. 2008). “While disability access cases are a 3 subset of civil rights practice, the reasonable hourly rate 4 merited in routine disability access cases typically falls below 5 the hourly rate charged in more complicated civil rights cases.” 6 Johnson v. Patel, No. 2:14-cv-2078 WBS AC, 2016 WL 727111, at *3 7 (E.D. Cal. Feb. 23, 2016). 8 Here, plaintiff seeks an hourly rate of $750 for 9 Frankovich and $350 for Lockhart. Frankovich has been an 10 attorney for over 42 years and claims to have prosecuted over 11 2,000 disability access cases throughout California. (See 12 Frankovich Decl. ¶¶ 4 & 11-12.) Lockhart has been an attorney 13 for about six years, working on almost exclusively disability 14 access cases. (See id. ¶¶ 31-33.) The court finds, and 15 plaintiff does not dispute, that this case involved a 16 straightforward application of the law and did not present novel 17 or difficult issues requiring a high level of skill or 18 specialization. 19 The undersigned has not had the opportunity to 20 determine Frankovich’s hourly rate in previous disability access 21 cases. For attorneys with around twenty years of experience, 22 this court has found that an hourly rate of $300 is appropriate 23 in disability access cases. See Johnson v. Hey Now Props., LLC, 24 No. 2:16-cv-02931 WBS KJN, 2019 WL 586753, at *3 (E.D. Cal. Feb. 25 13, 2019). Because Frankovich has significantly more experience 26 and defendant concedes that an hourly rate of $350 is 27 28 1 appropriate, the court will award an hourly rate of $350.2 (See 2 Def.’s Opp’n at 13-14 (arguing that an award of $350 an hour for 3 Frankovich is both reasonable and appropriate) (Docket No. 35).) 4 The court declines to award Frankovich a higher hourly rate. 5 This ADA case was not complicated, and as other courts have 6 observed, Frankovich has reduced these cases to “a kind of 7 routine.” See, e.g., Yates, 2014 WL 572528, at *6; see also 8 Loskot v. Annie’s Panda Garden, No. 2:13-cv-00213 JAM, 2015 WL 9 2235521, at *2 (E.D. Cal. May 12, 2015) (calculating $300 per 10 hour lodestar rate for Frankovich and declining to award a rate 11 of $400 per hour, which is normally reserved for complicated 12 civil rights cases litigated by attorneys with at least 30 years 13 of experience). 14 This court has examined the experience of Lockhart in 15 previous access cases and found that an hourly rate of $150-$175 16 is appropriate for her work. See Johnson v. Powers, No. 2:15-cv- 17 00245 WBS AC(PS), 2019 WL 2386063, at *1 (E.D. Cal. June 6, 2019) 18 (collecting cases); Hey Now, 2019 WL 586753, at *3. Plaintiff 19 does not cite any new cases finding that Lockhart’s reasonable 20 hourly rate in Sacramento for a routine disability access case 21 exceeds these rates. The court also notes that while it approved 22 a rate of $175 for Lockhart in Powers, 2019 WL 2386063, at *1, 23 2 To the best of this court’s knowledge, Magistrate Judge 24 Craig Kellison in 2017 was the last Eastern District judge to assess Frankovich’s hourly rate, and he found that an hourly rate 25 of $300 was reasonable. See Pickern v. Nord Mkt., No. 2:17-CV- 1130-JAM-CMK, 2017 WL 6622749, at *6 (E.D. Cal. Dec. 28, 2017) 26 (granting default judgment and awarding attorney’s fees and 27 costs). The undersigned in this case appears to be the first judge to award Frankovich this high of an hourly rate in 28 Sacramento. 1 that rate was justified because “plaintiff’s counsel went above 2 and beyond what is typically done in a disability access case.” 3 Given no such circumstances in this case, the court determines 4 that a $150 per hour lodestar figure for Lockhart is appropriate 5 in this case. 6 Unsatisfied with the Eastern District’s practice of 7 determining reasonable hourly rates, plaintiff offers some 8 evidence in support of his counsel’s requested rates. Plaintiff 9 does not, however, cite to any new cases from the Eastern 10 District justifying a higher rate than those set above by this 11 court. 12 Instead, plaintiff’s counsel first relies on Scottlynn 13 Hubbard’s report and declarations. Hubbard’s declarations and 14 regression analysis are not helpful in determining the reasonable 15 rates for counsel. Indeed, Hubbard concedes that the Eastern 16 District has capped the hourly rate awarded to attorneys in 17 disability access lawsuits. (Decl. of Scottlynn Hubbard ¶ 20 18 (Docket No. 38).)3 He does not cite any case in the Eastern 19 District where Frankovich or Lockhart, or any other attorney, 20 have received a higher hourly rate in disability access cases 21 than what the court determined above. The same concerns apply to 22 the declaration of Michael Welch. He too fails to identify any 23 attorney’s fee award in Sacramento in any disability access case 24 that adopted plaintiff’s proposed rates.4 The court’s rate

25 3 Because the court does not rely on the exhibits attached to Scottlynn Hubbard’s declaration, the request to seal 26 those exhibits is DENIED AS MOOT. 27 4 While Welch claims that he charges an hourly rate of 28 $750 as a defense attorney in disability access cases (see Decl. 1 accounts for the experience of these attorneys and the complexity 2 of disability access cases -- all of which are factors this court 3 must consider. See Chalmers, 796 F.2d at 1210-11. 4 The court also declines to use the Laffey Matrix to 5 determine the reasonable hourly rates. As this court has stated 6 previously, “[t]he Laffey Matrix is not an accurate tool to 7 assess market rates in this district and it fails to account for 8 differences in hourly rates depending on the area of practice.” 9 Hey Now, 2019 WL 586753, at *3 (citation omitted). 10 Accordingly, because the reasonable hourly rates for 11 Frankovich and Lockhart are $350 and $150 respectively, the 12 lodestar in this case is $14,850, calculated as follows: 13 Frankovich: 39 x $350 = $13,650 14 Lockhart 8 x $150 = $ 1,200 15 $14,850 16 C. Adjustment to the Lodestar 17 Once the court has computed the lodestar, there is a 18 “‘strong presumption’ that the lodestar is the reasonable fee.” 19 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting 20 City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). The 21 Ninth Circuit has emphasized, however, that the district court 22 must consider “whether it is necessary to adjust the 23 presumptively reasonable lodestar figure on the basis of the Kerr 24 factors that are not already subsumed in the initial lodestar 25

of Michael Welch ¶ 7 (Docket No. 31)) he does not say that 26 plaintiff’s attorney in any case he has handled has been awarded 27 fees at such a rate, and as Welch acknowledges, this rate is well in excess of rates previously approved for disability cases in 28 the Eastern District of California. 1 calculation.” Morales v. City of San Rafael, 96 F.3d 359, 363-64 2 (9th Cir. 1996) (citing, inter alia, Kerr v. Screen Guild Extras, 3 Inc., 526 F.2d 67, 70 (9th Cir. 1975)). “[T]he Kerr factors only 4 warrant a departure from the lodestar figure in ‘rare and 5 exceptional cases.’” In re Bluetooth Headset Prod. Liab. Litig., 6 654 F.3d 935, 942 n.7 (9th Cir. 2011) (quoting Fischer, 214 F.3d 7 at 1119 n.4). Plaintiff does not seek an enhancement under the 8 Kerr factors (see Pl.’s Mem. at 18 (Docket No. 29-1)), while 9 defendant argues that the Kerr factors warrant a downward 10 departure. 11 In support of his argument for a downward departure, 12 defendant relies on the following Kerr factors: (1) time and 13 labor required; (2) the preclusion from other employment; (3) the 14 undesirability of this case; and (4) the specific circumstances 15 of this case. None of these factors warrant a downward departure 16 from the lodestar. First, the court already significantly 17 reduced Frankovich’s claimed hours to appropriately account for 18 the time actually required to resolve this matter. Second, 19 neither side introduces evidence indicating whether Frankovich 20 was precluded from other employment, so the court cannot reach a 21 conclusion under this factor either way. Third, the court 22 acknowledges that the straightforward nature of these cases can 23 make them lucrative. See Doran v. Corte Madera Inn Best W., 360 24 F. Supp. 2d 1057, 1063 (N.D. Cal. 2005) (reaching the same 25 conclusion). However, the court already considered the 26 simplicity of this case when calculating appropriate hourly 27 rates. Fourth, as explained above, the court has considered the 28 circumstances of this case by significantly reducing Frankovich’s 1 allowed time to conform with representations he made at the 2 settlement conference. Therefore, all the relevant factors taken 3 together do not favor a departure. 4 Accordingly, plaintiff will be awarded $14,850 in 5 attorney’s fees. 6 II. Costs and Litigation Expenses 7 The ADA permits the court to allow “the prevailing 8 party . . . a reasonable attorney’s fees, including litigation 9 expenses, and costs.” See 42 U.S.C. § 12205. Plaintiff seeks 10 $11,498.00 in costs and litigation expenses. These costs include 11 $98.00 in copying fees, $400.00 in filing fees, and $11,000.00 12 for the report and declaration of Scottlynn Hubbard. (Pl.’s Ex. 13 G (Docket No. 30-5).) Defendant objects only to the costs 14 related to Hubbard. 15 The request of $11,000 in fees for the preparation of 16 Hubbard’s so-called regression analysis is ludicrous. Hubbard is 17 simply another plaintiffs’ attorney, with less experience than 18 Frankovich, who handles disability cases. There is no showing 19 that has the qualifications to express any opinion as an expert 20 witness in statistical, financial or business analyses. Yet, 21 plaintiff has the audacity to expect defendant in this case to 22 pay Hubbard $575 per hour for the preparation of his report, 23 almost twice the hourly rate Hubbard has ever recovered from this 24 court for his work as an attorney. 25 Moreover, the court finds this kind of analysis totally 26 useless in determining attorney’s fees in a routine fees motion. 27 Typically, parties submit declarations from local counsel 28 practicing in the relevant area indicating their hourly rate. 1 See Johnson v. Wayside Prop., Inc., No. 2:13-cv-1610 WBS AC, 2014 2 WL 6634324, at *8 (E.D. Cal. Nov. 21, 2014). Declarations from 3 Sacramento attorneys who represent plaintiffs in routine 4 disability access cases are far more helpful than Hubbard’s 5 declaration and regression analysis. See id. Hubbard’s 6 assessment of reasonable hourly rates was not based on the 7 customary award in the relevant practice area in this district.5 8 Indeed, “[r]easonable costs are those that are incurred 9 in efforts that materially advance the action toward resolution.” 10 Luna v. Hoa Trung Vo, No. 1:08-cv-1962 AWI SMS, 2011 WL 2078004, 11 at *9 (E.D. Cal. May 25, 2011) (citations and quotations 12 omitted). The parties settled this matter under the assumption 13 that a settlement would save them the costs of proceeding to 14 trial. Attempting to recover $11,000 in fees related to a single 15 report to obtain a far greater sum than the settlement in this 16 case is not within the spirit in which this case was settled and 17 defeats the entire purpose of the settlement. 18 Plaintiff’s counsel obviously obtained this report in 19 an effort to recover his requested hourly fee knowing that it was 20 well in excess of any rate that has ever been approved in this 21 district for this type of case. Given this defendant’s limited 22 5 In Orr v. California Highway Patrol, this court found 23 that an attorney may retain separate counsel to work on the fee motion and recover for that counsel’s work on the motion. See 24 Orr v. Cal. Highway Patrol, No. 2:14-cv-585 WBS EFB, 2015 WL 9305021, at *13 (E.D. Cal. Dec. 22, 2015), vacated sub nom. on 25 other grounds, Orr v. Brame, 727 F. App’x 265 (9th Cir. 2018). By contrast here, it appears that Hubbard had no role in drafting 26 the fee motion. Instead, he was retained simply to justify a 27 higher hourly rate for plaintiff’s counsel using a methodology that was questionable at best. This is not time spent preparing 28 the fee motion. See Wayside, 2014 WL 6634324, at *9 n.5. 1 resources, it is disconcerting that plaintiff’s counsel would 2 seek to use this case as a vehicle to challenge the rate 3 customarily applied in this district. For all the foregoing 4 reasons, the court finds that the expenditure of $11,000 in costs 5 for the declaration and report of Hubbard was unnecessary, 6 | unreasonable given the amount at issue, and unhelpful in 7 determining the reasonable hourly rate for a disability access 8 attorney in Sacramento. See Wayside, 2014 WL 6634324, at *9. 9 | The court will not require defendant to reimburse plaintiff for 10 this cost. 11 Because defendant does not object to the remaining $480 12 in costs, the court will award this amount to plaintiff. 13 IT IS THEREFORE ORDERED that plaintiff’s motion for 14 attorney’s fees, costs, and litigation expenses be, and the same 15 hereby is, GRANTED in part. Defendant is directed to pay $14,850 16 | in fees and $480 in costs. 17 Dated: September 6, 2019 L - ak. 8 WILLIAMB.SHUBB- 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 13