Judge: Gregory Keosian, Case: BC641704, Date: 2022-12-14 Tentative Ruling
Case Number: BC641704 Hearing Date: December 14, 2022 Dept: 61
Plaintiff Joseph Pumphrey’s Motion
for Attorney’s Fees is GRANTED in the amount of $42,628.50 in attorney fees,
plus $1,992.04 in expert fees.
I.
MOTION
FOR ATTORNEY’S FEES
Plaintiff
Joseph Pumphrey (Plaintiff) seeks an award of attorney fees amounting to
$106,151.00, representing 255.42 hours of work by four attorneys and one
paralegal. (Motion at p. 15.) Plaintiff also seeks expert witness fees
amounting to $10,770.59. (Motion at p. 14.) Plaintiff claims this award under
Code of Civil Procedure § 1021.5:
Upon motion, a court may award attorneys' fees to a
successful party against one or more opposing parties in any action which has
resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement, or of enforcement by one public
entity against another public entity, are such as to make the award
appropriate, and (c) such fees should not in the interest of justice be paid
out of the recovery, if any.
(Code Civ.
Proc. § 1021.5.)
Plaintiff
reasons that an award of fees is appropriate under a “catalyst” theory, whereby
Plaintiff’s suit caused Defendant Min & Hong Corporation (Defendant) to
remedy the accessibility defects on their property. “The catalyst theory is an
application of the . . . principle that courts look to the practical impact of
the public interest litigation in order to determine whether the party was
successful, and therefore potentially eligible for attorney fees.” (Graham v. DaimlerChrysler Corp. (2004)
34 Cal.4th 553, 566.) The requirements for a plaintiff to claim fees
under the catalyst theory are these. “At the very least, a plaintiff must
establish the precise factual/legal condition that it sought to change or
affect as a prerequisite for establishing the catalytic effect of its lawsuit.”
(Graham, supra, 34 Cal.4th at p. 576, internal quotation marks
omitted.) Second, the plaintiff must establish “that the lawsuit is not
frivolous, unreasonable or groundless, in other words that its result was
achieved by threat of victory, not by dint of nuisance and threat of expense.”
(Id. at pp. 575–76, internal
quotation marks and citations omitted.) Finally, “a plaintiff seeking attorney
fees under a catalyst theory must first reasonably attempt to settle the matter
short of litigation.” (Id. at p.
577.)
This court previously
denied a motion brought by Plaintiff seeking these fees prior to the entry of
judgment in this case, reasoning that, although the lawsuit had caused
Defendant to make the desired changes to the property at issue, Plaintiff had
not shown that the suit was “not frivolous, unreasonable or groundless,” and
had not presented any evidence to support his underlying claims. Plaintiff
resumes the present motion after obtaining judgment in his favor, reasoning
that trial and a favorable decision have resolved the question of his claim’s
validity. (Motion at p. 7.)
Defendant,
however, argues that Plaintiff could not have prevailed upon his claim for
injunctive relief, even if it had not been rendered moot by Defendant’s
actions, because Plaintiff made certain admissions in discovery that ought to
have precluded him from seeking injunctive relief. (Opposition at pp. 7–8.)
Specifically, Plaintiff replied “admit” to Defendant’s proffered assertion that
he did “not intend to return to the Restaurant in the immediate future,” as of
discovery responses tendered on July 2, 2018. (Abraham Decl. Exh. 4.) Plaintiff
also stated in deposition that the time frame for his visits to the restaurant
were after his appointments to a nearby physical therapist, for which the last
appointment occurred in August 2016. (Abraham Decl. Exhs. 1, 5.) Accordingly,
Defendant argues that Plaintiff’s claims for relief could not support a showing
of a “real and immediate threat” to Plaintiff such that a prayer for injunctive
relief would lie under the Americans with Disabilities Act (ADA). (Opposition
at pp. 2–3, citing City of Los Angeles v. Lyons (1983) 461 U.S. 95,
105.) And because Plaintiff could not obtain injunctive relief, he could only
have obtained damages, limited by statute to a maximum of $12,000.00, which
ought to have sent this case to a limited jurisdiction department or a
small-claims court. (Opposition at pp. 7–8.)
Plaintiff is
correct in arguing that his ADA claims were not frivolous, unreasonable, or
groundless. Plaintiff has obtained judgment in his favor after a trial and a
judicial finding of at least one ADA violation. There is no contention that
Plaintiff lacked standing to prosecute these claims; only that Defendant would
have prevailed upon an ultimate determination as to whether an injunction
should issue. That Defendant might have obtained reclassification of this case
after a sufficient showing that injunctive relief was impossible does not
warrant a determination that Plaintiff’s lawsuit objectively lacked merit.
It does,
however, warrant a substantial reduction of fees under Code of Civil Procedure
§ 1033. That statute states: “Costs or any portion of claimed costs shall be as
determined by the court in its discretion in a case other than a limited civil
case in accordance with Section 1034 where the prevailing party recovers a
judgment that could have been rendered in a limited civil case.” (Code Civ.
Proc. § 1033, subd. (a).) Although this language is limited to “costs,” courts
applying the statute have held it applicable to requests for statutory fee
awards made to prevailing parties, such as those made under FEHA. (See
Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 976 [“[S]ection
1033(a), interpreted according to its plain meaning, gives a trial court
discretion to deny attorney fees to a plaintiff who prevails on a FEHA claim
but recovers an amount that could have been recovered in a limited civil case.”].)
Here, it was
reasonably apparent to all parties by October 11, 2019 — when Plaintiff filed
their first attorney fees motion — that Plaintiff’s prayer for injunctive
relief had been rendered moot by Defendants’ voluntary remedial efforts. Thus
by that time, injunctive relief was off the table, and Plaintiff’s maximum
damages were readily estimable at $12,000.00. (Harrison Decl. Exh. 15.) This is
far below the amount in controversy necessary to maintain an action in
unlimited jurisdiction court. (See Code Civ. Proc. § 86 [defining
limited civil cases to include those involving $25,000 or less].) Even if
Plaintiff reasonably believed that injunctive relief (and unlimited
jurisdiction) were appropriate when the suit was filed, no such belief would
have been reasonable from October 11, 2019 onward. Thus the maximum fees that
Plaintiff could reasonably incur are appropriately limited to those incurred
prior to October 2019, pursuant to Code of Civil Procedure § 1033, subd. (a).
Such a cutoff date is consistent with the foreseeable damages available to
Plaintiff, and the policies favoring remediation of accessibility barriers
underlying the catalyst theory and Code of Civil Procedure § 1021.5. (See
Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 233
[describing factors relevant to a decision to deny fees under section 1033].)
The maximum
lodestar under this analysis is that laid out in Plaintiff’s prior motion for
attorney fees, i.e. $55,518.50 in fees, plus $4,337.56 in expenses. (See
10/11/2019 Motion at pp. 20–21.) But even these fees are properly subject to
reduction. Specifically, in this court’s prior order denying that motion, it
ruled that Plaintiff’s motion was unfairly overlong and unsupported by facts
supporting the validity of Plaintiff’s claims, and that Plaintiff could
therefore not obtain the $7,905.00 in fees charged for that motion’s
preparation. The fee lodestar is therefore further reduced by $7,905.00, to
$47,613.50.
Defendant in
opposition also raises meritorious challenges to the particular fees sought by
Plaintiff. The supervising partner of Plaintiff’s firm, Jeff Harrison, charged
$2,250.00 to travel to and personally inspect the property, pursuant to his
custom of personally inspecting the relevant properties prior to taking a case.
(Harrison Decl. ¶ 4.) But while Plaintiff may justify the practice of
conducting a prior inspection of the property, he does not justify the charging
of legal partner rates to do so. This requires a further reduction of
$2,250.00.
Defendant also
persuasively argues that charges included by Marina Patchenko are duplicative
and unreasonable. Specifically, her
charges include not only independent work but time incurred for separate
consultations with other staff at the same firm. Charges for consultation with
lead counsel or a partner amount to 6.3 hours of work and $2,045.00 in fees,
and charges including separate consultation with paralegals amount to 2.3 hours
of work and $690. (Pantcheko Decl. Exh. 1.) Thus the lodestar is reduced in the
amount of $2,735.00.
Defendant also offers some persuasive
objections to the expert fees sought in this matter. Expert fees are
compensable for a prevailing ADA plaintiff. (42 U.S.C. § 12205; Lovell v.
Chandler (9th Cir. 2002) 303 F.3d 1039, 1058.) But among the
$4,337.56 in expert fees for services performed prior to October 2019, there
are $2,345.52 in charges incurred solely for the expert’s travel from Sonoma
County to southern California. (Harrison Decl. Exh. 17.) These travel-related
charges are unreasonable. Plaintiff’s argument that it cannot find a suitable
local expert in one of the largest metropolitan areas in the United States is
wholly implausible. (Reply at p. 9.) The compensable expert fees are therefore
reduced from $4,337.56 to $1,992.04.
The motion for attorney fees and expenses is
therefore GRANTED in the amount of $42,628.50 in attorney fees, plus $1,992.04
in expert fees.