1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

SHERIE WHITE,

CASE NO. CIV. S-04-0620 WBS KJM

Plaintiff,

v. MEMORANDUM AND ORDER RE:

ATTORNEYS’ FEES AND COSTS

GMRI, INC., dba Red Lobster,

Defendant.

----oo0oo----

Plaintiff Sherie White brought suit against defendant

GMRI alleging that defendant violated Title III of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12300, and

various California statutes. The parties entered into a

settlement agreement in September 2005. Pursuant to that

agreement, the court granted the parties’ stipulation to

dismissal with prejudice, save and except for plaintiff’s motion

for attorneys’ fees and costs. The court now considers

plaintiff’s motion for an award of attorneys’ fees pursuant to 42

U.S.C. § 12205.

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 1 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The provision reads in full: 1

In any action or administrative proceedings commenced

pursuant to [the ADA], the court or agency, in its

discretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee,

including litigation expenses, and costs, and the

United States shall be liable for the foregoing the

same as a private individual.

42 U.S.C. § 12205.

2

I. Factual and Procedural Background

Plaintiff filed suit in March 2004, seeking injunctive

and declaratory relief, statutory damages, $100,000 in general

and special damages, attorneys’ fees, interest, and punitive

damages under the ADA and California law. (Compl.) Plaintiff

filed a Motion for Summary Judgment on July 11, 2005, but

withdrew the motion on September 6, 2005, at which time

settlement negotiations were underway. On November 15, 2005, the

parties filed a settlement agreement and the case was dismissed.

(Stipulated Req. for Dismissal and Order.) 

Pursuant to this settlement, the plaintiff released all

of her equitable claims in exchange for $8,000 and defendant’s

promise to remove 41 offending architectural barriers from its

facility. (Orlick Decl. Ex. P at 1.) Additionally, plaintiff

retained her right to seek attorneys’ fees incurred as a result

of this action. (Id.) Plaintiff now moves for attorneys’ fees

and costs in the amount of $26,736.94. (Pl.’s Mot. for Attys’

Fees 2). Defendant opposes this motion in its entirety and seeks

a denial of all attorneys’ fees and costs. 

II. Discussion

Pursuant to 42 U.S.C. § 12205, a federal court may 1

award reasonable attorneys’ fees to the prevailing party in an

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 2 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The court may adjust the lodestar figure on the basis 2

of the Kerr factors:

(1) the time and labor required, (2) the novelty and

difficulty of the questions involved, (3) the skill

requisite to perform the legal service properly, (4)

the preclusion of other employment by the attorney due

to acceptance of the case, (5) the customary fee, (6)

whether the fee is fixed or contingent, (7) time

limitations imposed by the client or the circumstances,

(8) the amount involved and the results obtained, (9)

the experience, reputation, and ability of the

attorneys, (10) the “undesirability” of the case, (11)

the nature and length of the professional relationship

with the client, and (12) awards in similar cases.

Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.

1975). However, many of the Kerr factors have been subsumed in

the lodestar approach. Cunningham v. County of Los Angeles, 879

F.2d 481, 487 (9th Cir. 1988). Moreover, the court should

consider the factors established by Kerr, but need not discuss

each factor. Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1073

(9th Cir. 1983). 

3

action under the ADA. A prevailing plaintiff under the ADA

“should ordinarily recover an attorneys’ fee unless special

circumstances would render such an award unjust.” Barrios v.

Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir. 2002)

(quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). The

district court determines the amount of the attorneys’ fees by

using the lodestar calculation--the number of hours reasonably

expended on the litigation multiplied by a reasonable hourly

rate. Hensley, 461 U.S. at 433. There is a strong presumption

that the lodestar amount is reasonable. Fischer v. SJB-P.D.,

Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000) (citation omitted). 

However, the court may adjust the lodestar figure if various

factors overcome the presumption of reasonableness. Hensley, 461 2

U.S. at 433-34. Additionally, the general rule prescribing the

use of the lodestar figure does not apply when a civil rights

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 3 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

plaintiff receives only limited or technical success. Fischer,

214 F.3d at 1119. 

A. The Prevailing Party

A civil rights plaintiff prevails “when actual relief

on the merits of his claim materially alters the legal

relationship between the parties by modifying the defendant’s

behavior in a way that directly benefits the plaintiff.” Farrar

v. Hobby, 506 U.S. 103, 111-12 (1992). A settlement which

modifies a defendant’s behavior so as to directly benefit the

plaintiff materially alters the legal relationship between the

parties and confers “prevailing party” status upon the plaintiff. 

Barrios, 277 F.3d at 1134 (affirming that the plaintiff was a

prevailing party when the settlement agreement prohibited the

defendant from excluding the plaintiff from coaching baseball

games and required the defendant to pay the plaintiff $10,000 in

damages).

Here, the parties’ settlement obligates the defendant

to effect 41 architectural changes to its facility and pay

plaintiff $8,000 in damages. This is a material alteration of

the legal relationship between plaintiff and defendant to the

direct benefit of plaintiff. Therefore, plaintiff is the

prevailing party for purposes of § 12205. 

B. Lodestar Calculation

1. Hours Reasonably Expended

Properly calculated fee awards should represent the

reasonable worth of the services rendered in vindication of the

plaintiff’s civil rights claim. Blanchard v. Bergeron, 489 U.S.

87, 96 (1989). “Counsel for the prevailing party should make a

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 4 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Additionally, defendant invites the court reconsider 3

its previous refusal to deny plaintiff’s attorneys’ fees and

costs for failure to give the proper pre-litigation notice based

on Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028, 1029 (C.D. Cal.

2005). (Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees 3 n.8.) The

court declines defendant’s invitation as this issue is settled

within the Ninth Circuit. See Botosan v. Paul McNally Realty,

216 F.3d 827, 832 (9th Cir. 2000).

5

good-faith effort to exclude from a fee request hours that are

excessive, redundant, or otherwise unnecessary . . . .” Hensley,

461 U.S. at 434. When the hours worked or the rates claimed are

not supported by evidence or adequate documentation, the district

court may reduce the award accordingly. Id. at 433. 

Plaintiff has submitted a billing statement itemizing

the time counsel spent on this matter. Plaintiff seeks

$19,539.75 in attorneys’ (and paralegals’) fees and $7,197.19 in

costs. (Lynn Hubbard Decl. Ex. A.) Defendant would have the

court deny all fees and costs as lacking the requisite evidence

and documentation. (Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees 3

17.) Because plaintiff has included general itemization and

documentation to support the request for an award of attorneys’

fees, and because plaintiff’s itemization is not deficient as a

whole, the court need only address the allegedly unreasonable

line items.

a. Conflict check

In two other ADA cases before this court in which the

Law Offices of Lynn Hubbard III also served as plaintiff’s

counsel, the court did not allow a fee to be collected for an

initial conflict check. Loskot v. U.S.A. Gasoline Corp., No. 01-

2125, slip op. at 11 (E.D. Cal. Apr. 26, 2004); Eiden v. Thrifty

Payless Inc., No. 04-398, 2005 WL 3577146, at *2 (E.D. Cal. Feb.

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 5 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

23, 2005). In both of those cases the court was “not persuaded

that Lynn Hubbard routinely bills paying clients and collects

from them for time spent on conflict checks.” Eiden, 2005 WL

3577146, at *2. In particular, the undersigned noted in Eiden,

after quoting Loskot, that “[n]othing has changed the court’s

perception” since the first instance where Lynn Hubbard was

denied fees for performing an initial conflict check. Id. Once

again, nothing has changed the court’s perception, and therefore

Lynn Hubbard’s charge for a 0.7 hour initial conflict check is

disallowed. 

b. Communications with client

Plaintiff has filed 59 separate ADA actions in this

court under the counsel of the Law Offices of Lynn Hubbard III

and she gives her counsel complete authority to settle her cases. 

(Orlick Decl. Ex. C at 13.) Based on the length and nature of

the attorney’s professional relationship with the plaintiff,

lengthy discussions of fee agreements would not seem to be

necessary. This court has previously reduced the time reasonably

expended drafting a client’s fee letter and agreement by twothirds, based on the sheer volume of ADA cases handled by the

Hubbards. Eiden, 2005 WL 3577146, at *3. Given the relationship

between counsel and plaintiff in this case and counsel’s

experience with such a routine task, the court will take the same

approach in this instance to counsel’s time spent on the fee

agreement. Consequently, the time attributed to Bonnie

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 6 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendant also challenged the 24 minutes that 4

plaintiff’s counsel claims to have spent discussing settlement

demands with the client. Although plaintiff’s deposition

testimony calls into question whether these discussions actually

took place, the court finds that 24 minutes is not an

unreasonable amount of time to devote to a discussion regarding 

settlement. Moreover, the court assumes this conversation took

place at some point in time because counsel is ethically

obligated to discuss settlement offers with a client.

7

Vonderhaar will be reduced by .67 hours.4

c. Discrepancies in paralegal time

There are troubling discrepancies between several of

the line items presented to this court and the documents those

line items reference. In six similar entries, plaintiff

purported to have service of documents accomplished by a

paralegal even though a legal assistant of a different name

signed the proofs of service. These discrepancies are sufficient

to render inadequate the documentation for those hours charged. 

Accordingly, 1.5 hours will be struck from the time attributed to

Alisha Petras and .3 hours will be struck from the time

attributed to Bonnie Vonderhaar. 

d. Discovery requests

Plaintiff attributed six hours to Alisha Petras and 1.5

hours to Lynn Hubbard for the preparation and review of

Plaintiff’s Request for Admissions, Plaintiff’s Request for

Production of Documents, and Plaintiff’s Propounded

Interrogatories. These documents are overwhelmingly similar to

the discovery requests served on the same defendant by the same

plaintiff in a separate action filed three weeks prior to the

instant case. (See Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees,

Orlick Decl. ex. M pts. 1-3, White v. GMRI, CV-04-0465 (E.D. Cal.

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 7 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Of the ten meetings conducted, nine were handled by Ms. 5

Vonderhaar. Ms. Petras handled only one and she spent the

appropriate .2 hours accomplishing this task. Accordingly, the

court will deduct the entire 1.6 hours from Ms. Vonderhaar’s

total time.

8

filed Mar. 8, 2004).) The court finds plaintiff’s expenditure of

7.5 hours to produce essentially identical documents to be

excessive. The reasonable amount of time expended on minor

changes in the document is a third of what was requested by

plaintiff. See Eiden, 2005 WL 3577146, at *7. Accordingly, the

court reduces the time attributed to plaintiff’s discovery

requests by two-thirds, deducting four hours from the time

attributed to Alisha Petras and one hour from the time attributed

to Lynn Hubbard.

e. Meetings with calendar clerk

Plaintiff attributes 3.6 hours of paralegal time to ten

meetings with the calendar clerk. It is reasonable for a

paralegal to keep the calendar clerk informed of case

developments. Martinez v. Longs Drug Store, Inc., No. S-03-1843,

2005 WL 3287233, at *7 (E.D. Cal. Nov. 28, 2005). However, .2

hours is a reasonable duration for such a meeting, rather than

the .36 hours per meeting (on average) proposed by plaintiff. 

Id. The court will reduce the total amount of time spent on

calendar meetings by 1.6 hours, subtracting that amount from the

time charged by the paralegals.5

f. Failure to settle on February 3, 2005

 Defendant points out that plaintiff was offered full

injunctive relief on February 3, 2005 and contests any fees

incurred after that offer as unnecessary and unrecoverable.

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 8 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

(Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees 6.) Injunctive

relief, however, was not the sole relief sought by plaintiff in

this matter, and there is no indication that the parties had

reached agreement with regard to money damages. The fact that

the injunctive relief that was ultimately settled upon closely

resembled what was offered on February 3, 2005 is of no

consequence. A civil rights plaintiff may recover attorneys’

fees even for an unsuccessful stage of litigation, provided that

the unsuccessful stage was a necessary step towards her ultimate

victory. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053

(9th Cir. 1991).

Litigation after February 3, 2005 was a necessary step

toward plaintiff’s ultimate victory. As of that date, the

parties had not agreed upon all of the terms of the settlement. 

More litigation, including a motion for summary judgment, was

required before the parties reached mutual resolution. Plaintiff

achieved ultimate victory only after achieving settlement for

both injunctive and economic relief. Plaintiff is thus entitled

to fees incurred after February 3, 2005, subject to the remaining

lodestar calculation. 

2. Rate Reasonably Charged

The reasonable hours expended in this litigation must

be multiplied by a reasonable hourly rate to determine the

lodestar amount. To determine the reasonableness of hourly rates

claimed, the court looks to the “prevailing market rates in the

relevant community,” Blum v Stenson, 465 U.S. 886, 895 (9184),

for “similar work performed by attorneys of comparable skill,

experience, and reputation,” Chalmers v. City of Los Angeles, 796

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 9 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Congress certainly has not perceived the need for 6

anything even approaching such an adjustment in determining its

own salary or the salary of federal judges.

10

F.2d 1205, 1210-11 (9th Cir. 1997). The fee applicant bears the

burden “to produce satisfactory evidence--in addition to the

attorney’s own affidavits--that the requested rates are in line

with those in the prevailing community . . . .” Blum, 465 U.S.

at 895 n.11. The relevant community is generally the forum in

which the district court sits. Barjon v. Dalton, 132 F.3d 496,

500 (9th Cir. 1997).

Plaintiff’s counsel seeks a hourly compensation rate of

$305 for Lynn Hubbard, $275 for associate Scott Hubbard, and $90

for paralegals Bonnie Vonnderhaar and Alisha Petras. (Hubbard

Decl. Ex. A.) This court has consistently found that $250 per

hour for an experienced attorney, $150 for associates, and $75

for paralegals, are reasonable hourly rates for this community.

Loskot, No. 01-2125 at 8-9 (applying those rates to determine

plaintiff’s attorneys’ fees); see also Sanford v. Thrifty

Payless, Inc., No. 02-480, 2005 WL 2562712, at *4 (E.D. Cal. Oct.

11, 2005) (implicitly recognizing that these are rates are still

reasonable); Hiram C. v. Manteca Unified Sch. Dist., No. 03-2568,

slip op. at 3 (E.D. Cal. Nov. 5, 2004) (finding $250 to be a

reasonable hourly rate for an experienced attorney).

To account for the departure from the traditional

hourly rates, plaintiff seeks a 22% cost-of-living increase for

all rates. Plaintiff has not produced satisfactory evidence to

meet the burden required to effect such increases. The only 6

evidence offered to support the cost-of-living increase is a

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 10 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff invites the court to name another party, 7

attorney, or expert witness with more knowledge of disabled

access law than Scott Hubbard. This ignores the relevant

standard and improperly attempts to shift her burden. It is the

plaintiff’s burden, not the court’s, to provide satisfactory

evidence. See also Sanford, 2005 WL 2562712, at *4 (denying

counsel’s request seeking a rate of $175 for associate attorneys

including Scott Hubbard).

11

statistic from the United States Department of Labor referencing

a 22% nationwide inflation increase since 1998. (Pl.’s Mot for

Attys’ Fees 3.) This statistic is deficient in two regards. 

First, nationwide statistics do not necessarily reflect the

statistics attributable to this judicial district, the

appropriate focus for a reasonable hourly rate inquiry. Second,

even if this district experienced a similar increase in

inflation, increases in inflation do not always cause increases

in the prevailing market rates for ADA attorneys in this

district. Moreover, just four months ago, another judge in this

district implicitly recognized that the above rates are still

reasonable for an ADA case in the Eastern District. Sanford,

2005 WL 2562712, at *4. 

In addition to the cost-of-living increase sought by

plaintiff, plaintiff asks the court to “increase [Scott

Hubbard’s] hourly rate to match his knowledge, expertise, and

skill as an expert in ADA law.” (Pl.’s Mot for Attys’ Fees 4.) 

The burden is on the fee applicant to provide satisfactory

evidence that such an increase is due, considering the hourly

rates of comparable attorneys in this district. Plaintiff

provides no evidence in support of this request and, therefore,

plaintiff has not met her burden. Thus, the court will apply the 7

hourly rates of $250 for Lynn Hubbard, $150 for Scott Hubbard,

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 11 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

California law states that: 8

A paralegal shall possess at least one of the

following: . . . (4) A high school diploma or general

equivalency diploma, a minimum of three years of lawrelated experience under the supervision of an attorney

who has been an active member of the State Bar of

California for at least the preceding three years or

who has practiced in the federal courts of this state

for at least the preceding three years, and a written

declaration from this attorney stating that the person

is qualified to perform the paralegal tasks. This

experience and training shall be completed no later

than December 31, 2003.

Cal. Bus. & Prof. Code § 6450(c) (emphasis added).

12

and $75 for Bonnie Vonderhaar and Alisha Petras. 

Tangentially related to questions regarding rates,

defendant contends that Alisha Petras is unqualified as a

paralegal and asks the court to strike all hours attributed to

her work. (Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees 12.) For

support, defendant cites California Business and Professions Code

§ 6450(c)(4), requiring a paralegal with only a high school 8

diploma to have acquired a minimum of three years of law-related

experience before December 31, 2003, and also requiring a written

declaration by the attorney from whom this experience was gained. 

Although Ms. Petras allegedly acquired six years of law-related

experience prior to December 31, 2003, plaintiff does not provide

a written declaration from any supervising attorney who oversaw

Ms. Petras during that time. (See Pl.’s Reply 6.)

To clarify, defendant does not dispute that paralegal

time is compensable under the attorney fee award statute. 

(Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees 11.) Instead,

defendant asks the court to prevent plaintiff from recovering for

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 12 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Although the Local Rules pertaining to motion practice 9

do not provide for a response to replies to the opposition to

motions, defense counsel submitted a “sur-reply” to plaintiff’s

reply memorandum, in which defendant challenges the timeliness of

plaintiff’s reply and attaches a declaration from Ms. Petras’

former employer saying that she was not qualified as a paralegal. 

This declaration does not alter the court’s determination with

regard to the work performed by Ms. Petras.

Plaintiff’s attorney later called the clerk and asked

for permission to file a “sur-sur-reply.” The briefing has to

stop some time, and it has stopped now. Counsel for both sides

asked to have the motion submitted without argument, and that is

what the court has done.

13

Ms. Petras’ time at paralegal rates for failure to properly

document her qualifications. (Id. at 12.) The plain language of

the statute implicated here requires that a written declaration

from the attorney who supervised the individual’s acquisition of

law-related experience stating that the individual is qualified

to perform the requisite paralegal tasks. Cal. Bus. Prof. Code §

6450(c)(4). 

9

In another case before this court, Judge Levi concluded

that Ms. Petras was not a qualified paralegal under California

law and that her time should be compensated at the rate of a

legal assistant. Sanford v. GMRI, No. 04-1535, slip op. at 8-9

(E.D. Cal. Nov. 11, 2005). Plaintiff argues that because of a

bad relationship between Petras and the attorney who supervised

her training, “such a declaration will never be filed.” (Pl.’s

Reply 10-11.) Plaintiff cites no caselaw that would guide the

court as to how to incorporate this unsubstantiated argument of

factual impossibility and relieve plaintiff from the requirement

set out in § 6450(c)(4). Therefore, in line with the court’s

previous ruling, Ms. Petras’ will be treated as a legal

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 13 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

California Business and Professions Code § 6450(c)(3) 10

allows a person with a baccalaureate degree or an advanced degree

in any subject to qualify as a paralegal after one year of

law-related experience under the supervision of an attorney who

provides a declaration “stating that the person is qualified to

perform paralegal tasks.” Unfortunately, Ms. Petras cannot

qualify under this provision by simply providing a declaration

from her employer Lynn Hubbard attesting to her qualifications as

a paralegal. In her sworn statement, she admitted to only having

an associate degree, which is not equivalent to the baccalaureate

degree required under subsection (c)(3). See Cal. Sch. of

Culinary Arts v. Lujan, 112 Cal. App. 4th 16, 28 (2003); (Petras

Decl. ¶ 2 (“I hold a Specialized Associate Degree in Business and

Legal Office Management from Empire College . . . .”).

14

assistant whose fees are not separately reimbursable. See 10

Sanford, 2005 WL 2562712, at *3 (“While the Court will permit

recovery of time expended by paralegals, secretarial costs are

deemed by courts within this circuit to constitute overhead . . .

and are thus not separately reimbursable.” (citations omitted)).

3. Adjusting the Lodestar Calculation

Defendant requests that this court apply a negative

multiplier to the court determined lodestar amount. (Def.’s Opp’n

to Pl.’s Mot. for Attys’ Fees 15). Defendant argues that all

twelve of the Kerr factors weigh in favor of reduction. (Id. at

14.) However, five Kerr factors are subsumed in the lodestar

analysis: (1) the novelty of the issues, (2) the skill and

experience of counsel, (3) the quality of representation, (4) the

results obtained, and (5) the contingent nature of the fee

agreement. Morales v. City of San Rafael, 96 F.3d 359, 364 n.9

(9th Cir. 1996). Further, there is a strong presumption that the

lodestar amount is reasonable. Fischer, 214 F.3d at 1119 n.4. 

Defendant focuses its argument for a lodestar reduction

on the presumption that plaintiff achieved only limited success.

(Def.’s Opp’n to Pl.’s Mot. for Attys’ Fees 13-15.) To consider

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 14 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

the plaintiff’s relative success is to consider the results

obtained by the plaintiff, a factor subsumed in the lodestar

analysis. This circuit disfavors consideration of subsumed

reasonableness factors after the lodestar has been calculated. 

Morales, 96 F.3d at 364 n.9. Therefore, the court is unpersuaded

by defendant’s argument in favor of departure from the lodestar

calculation.

4. Costs

Plaintiff seeks $5,423.75 in costs for an expert report

prepared by JPC Contracting. (Pl.’s Mot. for Attys’ Fees Ex. A.) 

Such costs may be awarded under § 12505 as part of “litigation

expenses.” H.R. Rep. No. 101-485 (III), at 73 (1990), reprinted

in 1990 U.S.C.C.A.N. 445, 496 (“Litigation expenses include the

costs of expert witnesses.”); Robins v. Scholastic Book Fairs,

928 F. Supp. 1027, 1036 (D. Or. 1996). However, plaintiff’s

request includes a $2,700 bill for “Draftsman Hours” from Mika

Telecom Group, which was increased to $3,105 after a 15% JPC

Contracting surcharge. (Id. at Ex. C (JPC invoice).) Defendant

contends that the Mika Telecom Group invoice is too unclear and

speculative to support consideration of its amount. (Def.’s

Opp’n to Pl.’s Mot. for Attys’ Fees 17.) Defendant also contends

that the “Invoice Breakdown” provided by plaintiff contradicts an

invoice previously sent to defendant. (Compare id. Ex. C

(Invoice breakdown), with Orlick Decl. Ex. BB.) 

The burden is on the fee applicant to submit proper

documentation for fees sought. Hensley, 461 U.S. at 434. The

court agrees that the cost attributed to Mika Telecom Group are

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 15 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The court is not convinced that this bill invoices 11

“architectural drawings” as claimed in plaintiff’s reply brief. 

(Pl.’s Reply in Support for Attys’ Fees 12.) It is clear to even

the untrained eye that the only drawings provided in the report

are copies from the “Federal Register” Vol. 63, No. 8. (Orlick

Decl. Ex. CC.)

16

insufficiently documented. As to the remaining cost of the JPC 11

Contracting report, it is clear that some work was completed in

relation to this case. However, due to the contradicting

invoices, it unclear as to the exact amount of time spent. 

Because plaintiff has failed to meet her burden of proper

documentation, all costs for this report will be denied.

III. Conclusion

In accordance with the foregoing discussion, attorneys’

fees are awarded in the following amounts:

Lynn Hubbard: (46.55 - 1.7) hours @ $250/hr = $11,212.50

Scott Hubbard: 5.50 hours @ $150/hr = $825.00

Paralegals: (42.55 - 26.52) hours @ $75/hr = $1,202.25

Costs: ($7,197.19 - $5,423.75) = $1,773.44

TOTAL = $15,013.19

IT IS THEREFORE ORDERED that plaintiff’s motion for

attorneys’ fees and costs be, and the same hereby is, GRANTED in

the total sum of $15,013.19. 

DATED: January 19, 2006

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 16 of 17
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

Case 2:04-cv-00620-WBS -CMK Document 67 Filed 01/20/06 Page 17 of 17