Judge: David A. Hoffer, Case: 30-2019-1068775, Date: 2022-11-28 Tentative Ruling

Plaintiff Ronald Collings’ (“Plaintiff”) unopposed Motion for Attorney Fees against defendant Cedar Fair L.P. (“Defendant”) is GRANTED.

Plaintiff was successful on his unopposed summary judgment motion.  (ROA #175.)  The court subsequently entered judgment in favor of Plaintiff and against Defendant in the amount of $56,000 and required Defendant to complete remediation of violations of the ADA and California Building Code.  (ROA #240.)  Plaintiff is the prevailing party in this action.  (Civ. Proc. Code §§ 1032.)  As the prevailing party in a civil rights action, Plaintiff is entitled to recovery of attorney fees and expert witness fees.  (Civ. Proc. Code § 1033.5(10)(B); Civ Code. §§ 52 and 54.3; 42 U.S.C.A. § 12205.)

“[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.” [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.”  (PLCM Grp. v. Drexler (2000) 22 Cal. 4th 1084, 1095.)

“ ‘ “[A] ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” [Citation.] “[T]he district court must strike a balance between granting sufficient fees to attract qualified counsel to civil rights cases and avoiding a windfall to counsel.” [Citation.] “The way to do so is to compensate counsel at the prevailing rate in the community for similar work; no more, no less.” Id. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation....” ‘ “  (Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018).)

The court has reviewed the requested attorney billing fees and hours and find some issues with the requested amounts:

Attorney Sara Pezeshkpour (“Pezeshkpour”) requests an hourly rate of $550, which is more or less reasonable.  Pezeshkpour notes multiple courts throughout 2018 and 2019 awarded attorney fees based on her hourly billing rate of $450/hr., with the most recent being an 11/12/19 award in LACSC (none of these awards are backed by evidence).  Pezeshkpour included copies of her billing, which include items going back to 06/22/18.  (Pezeshkpour Decl., Ex. 3.)  Instead of using the $450/hour rate that she was apparently charging in 2018 and 2019, Pezeshkpour uses her current $550/hr. billing rate for all billable hours.  It is unclear exactly when Pezeshkpour increased her rate, but, assuming her rates increased with the new year (01/01/20), then the total amount billed at the incorrect rate is $4,240 (for billing between 06/22/18 and 12/31/19).  Furthermore, Pezeshkpour improperly seeks the $3,330 in attorney fees already awarded by the court in the 05/24/21 order.  (Pezeshkpour Decl., Ex. 3 at p. 15.)  There are also multiple in-house meetings between Plaintiff’s various attorneys that will not be permitted.  Pezeshkpour hours are granted in the following amounts:

After readjusting the billing rate and subtracting improperly billed/identified items, the total permitted for Pezeshkpour’s is $56,353.

Attorney Jeff A. Harrison requests 750/hour for 17.4 hours.  The court finds both the rate and the hours unreasonable.  With regard to the rate, attorney Harrison submits evidence that courts have approved the rate of $650/hour in the past.  While some of attorney Harrison’s services on this case were provided at a time coterminous with the $650 rate and some were provided after, the court still finds that $650/hour is the reasonable rate for attorney Harrison’s services in this case.  With regard to the hours, there is a more fundamental problem.  The unique feature of this litigation is that the defense did not contest anything.  All significant motions were unopposed and there were no high-level settlement discussions or hearings that required the presence of a senior partner (billing at a high rate).  Indeed, it may well be that the reason for the defense’s virtual concession was its attempt to keep down the attorney fees it would owe in the end.  While the court recognizes that some amount of senior manager time was required to guide the overall strategy of the litigation, no more was necessary.  Attorney Harrison’s billings reflect items such as a site visit (also attended by attorney Pezeshkpour) and review of discovery motions (drafted by other attorneys and unopposed).  In the unique circumstances of this one-sided litigation, these hours were not necessary.  Thus, the court reduces the allowable hours for attorney Harrison’s management from the 17.4 hours sought to 10 hours at $650 per hour for a total of  $6,500.   

Attorney Morgan Simpson’s billing rate was a reasonable $300/hr.  (Harrison Decl. ¶ 11.)  Though he billed 78.2 hours of time, the amount requested was reduced to 38.1 hours due to Simpson being a relatively new attorney.  (Harrison Decl. ¶ 14.)  The reduction seems appropriate so the requested amount of 38.1 hrs. x $300 = $11,430 is permitted.

Paralegal Abiguel Sorenson’s billing rate is $150/hr., which also seems high, however as there were no objections by Defendant, the court will permit that amount in this instance.  (Harrison Decl. ¶ 15.)  There does seem to be some duplicate or overlapping billing here, most notably that Sorenson billed 6.0 hours for drafting the Karen Haney declaration (Harrison Decl., Ex. 4 at p. 5), while attorney Pezeshkpour also billed approximately 9.5 hours on preparing the Haney Decl.  (Pezeshkpour Decl., Ex. 3.)  While the Haney declaration is approximately 70-pages in length, it is largely just copy and pasted from Haney’s punchlist report of non-compliant items.  With the 6.0 hours removed, the total number of hours permitted for Sorenson is 24.4 hrs.  The total dollar amount permitted for Sorenson’s work is $3,660.

Plaintiff also requests $17,077.50 in expert fees.  Recovery of these fees is permissible in actions brought under the ADA and Civ. Proc. Code § 1021.5.  (Blackwell v. Foley, 724 F. Supp. 2d 1068, 1084–85 (N.D. Cal. 2010).)

The total reasonable amount of attorney and expert fees recoverable is:

Plaintiff also seeks a multiplier in the amount of 1.25 times the base attorney fee award.

This matter was filed on 05/07/19 and summary judgment was granted on 04/11/22.  In that time, Plaintiff filed only four motions, including two motions to compel initial responses to written discovery (both unopposed and granted), a motion for leave to amend (unopposed and granted), and a summary judgment motion (unopposed and granted). (ROA ## 57, 63, 109, 168.)  As discussed above, the defense did not fight back to any of plaintiff’s efforts, virtually conceding liability.  Plaintiff’s counsel provided no evidence they were precluded from taking other clients nor that the demands in this case were extraordinary.  Thus, the request for a multiplier is denied.

The court awards a total of $95,020.50 in favor of Plaintiff and against Defendant on this Motion.

Plaintiff is ordered to give notice of this ruling and to provide a proposed amended judgment.