Judge: Michael Shultz, Case: 21STCV00023, Date: 2025-03-13 Tentative Ruling

Case Number: 21STCV00023    Hearing Date: March 13, 2025    Dept: 40

21STCV00023 Orlando Garcia v. Zarco Hotels Incorporated

[TENTATIVE] ORDER CONTINUING THE HEARING ON DEFENDANT’S MOTION FOR FURTHER ATTORNEY’S FEES

I.          BACKGROUND

       The complaint, filed on January 24, 2021, alleges that Plaintiff is a disabled person with physical disabilities which affect his mobility. (Complaint, ¶ 1.) Plaintiff alleges he accessed Defendant’s hotel reservation website to reserve a room but was not given sufficient information about the accessibility features in Defendant’s hotel room to allow Plaintiff to assess whether a given room met Plaintiff’s needs. (Complaint, ¶¶ 12-16, 18.) Defendant’s website stated only that the Defendant’s restaurant was “accessible” which is not enough information for Plaintiff to discern whether the tables, travel paths, or service counter were accessible to him. (Complaint, ¶21.)

       While Plaintiff alleged he did not need an exhaustive survey, Plaintiff needed information to assess whether the doorways were at least 32-inches wide, whether the position of the sinks in the hotel room provided enough wheelchair clearance, or alternatively, whether the plumbing beneath the sink was insulated to protect against burning. (Complaint, ¶22.)

       Plaintiff alleges he does not require an exhaustive list of accessibility features, however, Defendant should have provided a description of a handful of features with modest detail such as whether the hotel room entrance has 32 inches of clearance; whether there is 30 inches of clearance next to the bed to enable him to get into and out of the bed; whether the desk is at least 27-inches high, 30-inches wide, and runs at least 17-inches deep; whether the toilet seat height is between 17-19 inches and whether grab bars are available; the knee clearance of the restroom sink; the type of shower available; the availability of an in-shower seat, wall-mounted grab bars and a detachable, hand-held shower wand; and whether the wall mounted accessories are within 48 inches in height. (Complaint, 5:18-7:2.)

       Plaintiff alleged claims for damages, for injunctive relief, and for violations of the Americans With Disabilities Act and the Unruh Civil Rights Act.            

II.         ARGUMENTS

       Defendant argues that after Plaintiff voluntarily dismissed the action on October 6, 2022, with prejudice, Defendant moved for attorney’s fees. On July 11, 2023, the trial court determined that the action was frivolous and awarded Defendant $57,604.90 in fees as requested. The Court of Appeal affirmed the trial court’s ruling. Defendant requests an additional $109,222.97 in fees incurred in defending the appeal and to prepare this motion. Defendant has been defensively litigating this case for four years. Defendant wishes to be made whole.

       In contrast, Plaintiff argues that the appeal was not frivolous; the billing records are not accurate; and the fee request is vague, unintelligible, duplicative, inefficient, and implausible. Fees for this motion are unnecessary.

       In reply, Defendant argues that the appeal was frivolous. The records are accurate and reasonable and seeks reimbursement for compensable work. Deductions are not warranted. Any duplication is not unreasonable as they reflect efficient handling of similar cases.

III.        LEGAL STANDARDS

A.      Attorney’s fees may be awarded for work incurred to defend against Plaintiff’s appeal.             

       The court has discretion to allow a reasonable attorney’s fee, including litigation expenses, and costs incurred by the prevailing party. As in actions under Title VII of the Civil Rights Act of 1974, a prevailing defendant in an action under 42 U.S.C. § 1983 is entitled to attorney’s fees if "the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith" or "that the plaintiff continued to litigate after it clearly became so.”  (Hughes v. Rowe (1980) 449 U.S. 5, 14 ["The plaintiff's action must be meritless in the sense that it is groundless or without foundation.”]; Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978) 434 U.S. 412, 422.)  A prevailing Defendant may also recover attorney’s fees incurred on appeal of decisions from the lower court. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.)

       A “frivolous" appeal include those that are “indisputably [without] merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Huang v. Hanks (2018) 23 Cal.App.5th 179, 182.)

       In awarding fees, the court must “avoid post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” (Christiansburg at 421-422 ["Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit."].)

B.   The court determines whether the fee request is reasonable.

       The court begins with the lodestar, which is the number of hours reasonably spent multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court considers a number of factors including "the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’” (PLCM Group at 1096.) The lodestar figure can be adjusted based on the factors specific to the case. (Id.; Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 271 [" the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services."]

       To determine a reasonable market rate, "the courts will look to equally difficult or complex types of litigation.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700.) The “market rate” is generally based on the rates prevalent in the community where the court is located. (Id.) The trial court is in the best position to value the services rendered by the attorneys in his or her courtroom for the type of litigation at issue.

       The court may rely on his or her own experience and is given broad discretion in calculating reasonable attorney’s fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 ["The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”].)

       The court has discretion to apply a reduction in hours for duplicative and or excessive billing. Proper factors to consider in applying a reduction are the lack of complexity, that the matter did not go to trial, that name partners were doing work that could have been done by lower-billing attorneys, and that all the attorneys were doing work that could have been done by paralegals. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [Trial court properly applied a 39 percent reduction of the lodestar].)

       Ultimately, the trial court “is the best judge of the value of professional services rendered in its court” and its determination will not be disturbed unless it is “clearly wrong” or there is a “manifest abuse of discretion.” (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1134; Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394.)

IV.        ANALYSIS

       This court does not engage in post hoc reasoning to determine whether Defendant is entitled to a fee award. The court has reviewed the record, including Plaintiff’s complaint, Defendant’s motion for summary judgment, the trial court’s ruling granting Defendant’s fee request, and the analysis of Plaintiff’s allegations in the complaint by the Court of Appeal in affirming that ruling.

       Plaintiff argues that Morcos does not apply because the Morcos court was not construing the fee statute under the ADA. However, Morcos observed it was “settled case law” establishing "the general principle that statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals." (Morcos at 927.) The Morcos opinion did not depend on the construction of a particular fee statute.
       In granting the full amount requested in Defendant’s motion for attorney’s fees after Plaintiff dismissed the action, the Hon. Anne Richardson determined that 28 C.F.R. § 36.302 subd. (e)(ii)[1] and the Department of Justice (DOJ) guidance[2] thereon was “more than clear” of the accessibility information required to be disclosed through its reservations service. (M.O. 7.10.23.)

       Contrary to the general guidelines provided, Plaintiff’s complaint (referenced and cited above) required disclosure of exact inches of clearance provided for doorways, beds, showers, toilet and sinks in the hotel room and the restaurant, although Plaintiff also alleged that he did not need an “exhaustive list.” (Complaint, ¶ 22.) Plaintiff alleged that this “small list of items are the bare necessities that Plaintiff must know” to access whether the room “works for him.” (Complaint, ¶ 23.)

       Plaintiff argues that the level of detail required by section 36.302 did not become clear until Love v. Marriott Hotel Services, Inc. (9th Cir. 2022) 40 F.4th 1043 was decided. Plaintiff argues that “binding authority” did not exist at the time Plaintiff filed the complaint, and there was a “split of authority” regarding the merits of the claim. (Opp. 3:11-12.) However, as Justice Richardson observed, section 36.302 became effective October 11, 2016, and DOJ Guidance was available March 15, 2011, preceding the filing of this action. (M.O. 7/11/23 at p. 4.) Given the DOJ Guidance explaining what is required to be identified and described regarding a hotel’s accessibility features including an example of what constituted an adequate description, Plaintiff’s complaint lacked any foundation. Love on which Plaintiff relied did not resolve any dispute with regard to a hotel’s description of accessibility requirements.

       Plaintiff argues that the “agency deference rule” employed by Love was considered infirm at the time and has since been overturned by the U.S. Supreme Court. (Opp. 3: fn. 1.) The U.S. Supreme Court determined that in interpreting an ambiguous statute the court must exercise its independent judgment and not “afford binding deference to agency interpretations.” (Loper Bright Enterprises v. Raimondo (2024) 603 U.S. 369, 372.) The Loper court rejected the “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” (Id.)  A court exercises its independent judgment in determining the meaning of statutory provisions “may as they have from the start -- seek aid from the interpretations of those responsible for implementing particular statutes. (Id. at  371.)

       The trial court’s or the appellate court’s resort to DOJ Guidance that provided examples of the sufficiency of a Hotel’s accessibility disclosure is not at issue. In California, the courts do not regard an agency’s interpretation of a statute as binding; rather “the deference that a court must show an agency interpretation of a statute turns on whether the agency has a “‘comparative interpretive advantage over the courts.’” (Capen v. Shewry (2007) 155 Cal.App.4th 378, 391 [a court may resolve an ambiguity if it is "in as good a position as the [agency], or almost so, to [make the] interpret[ation].")

       In Love, the court deferred to DOJ’s interpretation based on the principle that deference is given to an agency’s construction of its own regulation, but not without exercising its independent judgment " into whether the character and context of the agency interpretation entitles it to controlling weight. (Love at 1047.)

       Regardless of the foregoing, Plaintiff did not challenge the trial court’s reliance on DOJ guidelines to determine the adequacy of the Hotel’s accessibility information.  

       Returning to the propriety of fee awards, Plaintiff relies on Kohler v. Bed Bath & Beyond of California, LLC (9th Cir. 2015) 780 F.3d 1260 where the U.S. Court of Appeals for the Ninth Circuit determined that the prevailing defendant was not entitled to recover fees because claims regarding maneuvering space “were not clearly resolved by prior case law interpreting the ADA, and therefore, it was reasonable for the Plaintiff to bring suit to resolve those questions.” (Id. at 1267.)

       Kohler, however, is distinguishable because it involved architectural barriers. (Id. at  1262.) Plaintiff’s complaint expressly alleges Plaintiff “is not claiming that the hotel has violated any construction-related accessibility standard. Instead, this is about the lack of information provided on the hotel’s reservation website that would permit plaintiff to determine if there are rooms that would work for him.” (Complaint, ¶ 7.)

       Plaintiff relies on Garcia v. Gateway Hotel L.P. (C.D. Cal., Aug. 4, 2021, No. CV2010752PAGJSX) 2021 WL 4776352 which is not persuasive as it discussed the appropriate standard for an award of costs under Fed. Rules Civ.Proc., rule 54, 28 U.S.C.A. which is not at issue here. In Garcia the district court relied on the Christianburg standards to deny fees because the court “could not conclude on the record” whether Plaintiff’s claim was frivolous or unreasonable. Garcia did not elaborate on the court’s reasoning or whether the reason therefore was the absence of prior binding authority as Plaintiff asserts here (Opp. 3:11-12.)

       The court concluded that “[j]ust because Plaintiff's case was unmeritorious, and other similar cases brought by the same counsel were unmeritorious, does not mean Plaintiff's FAC in this case was frivolous or unreasonable.” (Id. at  2-3.) By the same logic, Garcia’s denial of the fee motion does not mean fees should not be awarded here based on the allegations of Plaintiff’s complaint.

       Plaintiff’s reliance on Salinas v. Apple Ten SPE Capistrano, Inc. (C.D. Cal., Feb. 18, 2021, No. SACV2002379CJCDFMX) 2021 WL 3930605 is misplaced. The court denied attorney’s fees because it could not conclude that the complaint was frivolous, vexatious, or unreasonable because there were reasons why Plaintiff might have been entitled to the relief based on the insufficiency of the hotel’s website information. This alone does not persuasively establish that Defendant is not entitled to fees.

       Plaintiff raised new claims on appeal that the appellate court did not consider because they were forfeited. (Id. at  p.12 ¶ 2.) The Court of Appeal noted Plaintiff’s claims were based on the alleged insufficiency of accessibility information provided by the hotel, but the complaint displayed images of the bathroom and alleged that the placement of certain items failed to comply with the ADA, none of which were relevant to the alleged insufficiency of the Defendant’s accessibility information. (Id. at  13.) Finally, none of the cases Plaintiff relied upon compelled the conclusion that the trial court abused its discretion (Id. at p. 16.)

       Finally, Plaintiff argues that Defendant could have filed a motion for sanctions in the appellate court. Plaintiff does not cite any authority requiring Defendant to file a motion for sanctions in the appellate court.

       Based on the foregoing, this court finds Plaintiff’s appeal was also frivolous and unreasonable, entitling Defendant to fees incurred for the appeal.

B.   The court cannot assess the reasonableness of fees incurred on this record.  

       Plaintiff filed the Notice of Appeal on August 11, 2023. The court has considered the declarations of Martin H. Orlick and Steven Tubis and the billing records submitted.

       Defendant requests fees of $109,222.97 calculated by subtracting Plaintiff’s payment of $57,604.90 from the total defense costs of $166,827.87. This calculation does not establish that the work devoted to the appeal was reasonable. Plaintiff filed a notice of appeal on August 11, 2023. However, Defendant includes detailed billing records beginning July 22, 2021, preceding the commencement of the appeal.

       The billing for the appeal commences on August 11, 2023. (.pdf p. 108.) The billing thereafter is not limited to appellate work but includes work related to preparing a proposed judgment and enforcing that judgment (.pdf p. 116, 121-122 for example.) It is Defendant’s responsibility to parse from the billing records the particular work devoted to appeal.

                                                  V.         CONCLUSION

       Because the court cannot determine a reasonable amount of fees, Defendant is ordered to provide a supplemental declaration and prepare a spreadsheet identifying the work done in connection with the appeal only, the particular time spent, the timekeeper, and a total amount of those fees. The court continues this hearing to May 5, 2025, in Department 40 of the Stanley Mosk Courthouse. Defendant is ordered to file the foregoing declaration and spreadsheet 10 court days before the hearing.