October 8, 2021
A recent Metropolitan News story, “Judge Acted Arbitrarily in Setting ADA Attorney Fee Award,” reports that a District Court judge, in setting an attorney fee award, acted arbitrarily in disregarding the services of three of five lawyers who represented the plaintff in securing a settlement of his action under the federal Americans With Disabilities Act and the state Unruh Act and by making a 10 percent deduction as a penalty for the law firm inflating its fees, the Ninth U.S. Circuit Court of Appeals held.
Its memorandum opinion comes in a case bought by the Center for Disability Access, a division of the San Diego law firm of Potter Handy LLP, on behalf of Antonio Fernandez, who is wheelchair-bound. The center brings hundreds of ADA and Unruh actions each year, using a stable of plaintiffs, including Fernandez. The appeal came in a case instituted in the U.S. District Court for the Central District of California against Roberta A. Torres, who owned real property in Whittier and against CBC Restaurant Corp., which operated the Corner Bakery Café on Torres’s property. The suit was brought over the height of the counter.
In making his award of attorney fees, Judge Fernando M. Olguin said in a July 14, 2020 order: “Despite many years of experience litigating the two claims in this case in virtually hundreds of cases, and a docket that reflects little, if any, litigation in this case, plaintiff seeks $15,762.50 for the work performed by five attorneys….Further, the cases filed by plaintiff include nearly identical complaints and subsequent filings.” Olguin made note of three of the several ADA-based actions the center has recently brought in the Central District with Fernandez serving as the plaintiff.
The judge opined that the “assignment of so many experienced attorneys to such a simple case replete with boilerplate documents resulted in substantial task padding, duplication, over-conferencing, attorney stacking, and overall excessiveness,” declaring: “Given the simplicity of the case and ADA accessibility cases in general, the quick settlement and apparent lack of any contested litigation matters in this case, and the lack of any dispositive motions, no more than one partner and one associate was necessary to prosecute this case. Thus, the court will reduce the fee award by cutting the fees for three of the five attorneys.”
He opted to take cognizance only the services of the lead attorrney, Christina “Chris” Carson, who was admitted to practice on Dec. 2, 2011, and Mark D. Potter, whose State Bar membership goes back to Dec. 1, 1993.
Potter sought recompense at an hourly rate of $595 and Carson wanted to be paid $450 an hour. Olguin said that taking into account the various factors customarily assessed in setting attorney fees, “$425 is reasonable for attorney Potter, and an hourly rate of $275 is reasonable for attorney Carson.” Noting that there was a “quick settlement of this routine, non-complex case, where plaintiff did not file or oppose any dispositive motions,” Olguin declared that “the court will apply a ten percent reduction.” After subtracting “10% of the time billed for general excessiveness,” he awarded $3,897 in attorney fees—slightly less than 25 percent of what was sought. Olguin allowed the $642.50 in costs that were claimed.
Reversal came in an opinion signed by Circuit Judges Susan P. Graber and John B. Owens and by District Court Judge Charles R. Breyer of the Northern District of California, sitting by designation. The judges said: “While we agree with the district court that Fernandez’s lawyers overbilled, it was ‘arbitrary’ to ignore entirely the time billed by three of the five lawyers….These three appear to have performed at least some necessary work….To the extent that overstaffing resulted in inefficiencies, the district court should reduce the fee award in proportion to those inefficiencies, rather than Through a ‘shortcut.’ ”
The opinion continues: “The district court also abused its discretion in calculating the hours of the two attorneys whose work it considered. The court provided cogent reasons for its specific cuts as to various tasks, but its final additional 10% reduction for ‘general excessiveness’ lacked any justification.” Olguin did not abuse his discretion in setting the rates for Carson and Potter, the Ninth Circuit said, because they had nor provided evidence substantiating the higher value they ascribed to their services.