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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

SCOTT JOHNSON,

NO. CIV. S-04-699 LKK/PAN

Plaintiff,

v. O R D E R

THE NORMAN and EDITH HILL TRUST;

and PAIMAN RAHBARIAN,

Defendants.

 /

Plaintiff, Scott Johnson, filed suit against defendant to

remove architectural barriers and to make accessible a massage

business known as the “Chalet,” located at 2128 Marconi Avenue,

Sacramento, CA. Plaintiff, who requires a wheelchair for

ambulation, alleges that he drove to the Chalet on August 6, 2003,

but could not patronize it due to a lack of accessible parking and

lack of access from the parking lot to the entrance of the

building. Plaintiff brought suit pursuant to Title III of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et

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 Judge Nowinski noted in his F&Rs that defendant appeared 1

twice in this action, filing an answer on July 30, 2004 and a

status report on August 25, 2004. Although the notice of the

motion and the motion for default judgment were served on

defendant, and the hearing on the motion was convened on October

12, 2005, neither defendant nor his counsel appeared.

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seq., the California Disabled Persons Act, Cal. Civ. Code § 54.1,

and the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51

et seq. 

Pending before the court is plaintiff’s motion for attorney’s

fees pursuant to the ADA and state law. No opposition brief has

been filed. I decide the matter based on the papers and pleadings

filed herein. 

I.

 BACKGROUND

This suit was referred to Magistrate Judge Peter A. Nowinski

pursuant to 28 U.S.C. § 636, et seq., and Local Rule 72-302. On

January 20, 2006, Judge Nowinski filed Findings and Recommendations

(“F&Rs”) which were served on all parties. Judge Nowinski

recommended that the court grant plaintiff’s motion for entry of

default judgment, and that defendant should be directed to remove 1

the following barriers and make the following accommodations at The

Chalet within 90 days of service of judgment pursuant to the ADA:

1. Create a 96-inch-wide access aisle on passenger side of

accessible space, with striping as required by Cal. Bldg.

code § 1129B.4 and the words “NO PARKING” painted in the

access aisle in 12-inch letters.

2. Post the tow-away sign required by Cal. Bldg. Code §

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1129B.5 at each entrance or adjacent to the accessible

parking space.

3. Mount a sign with the International Symbol of

Accessibility which complies with Cal. Bldg. Code § 1129B.5

on the fence of the front of the accessible parking space.

Mount a separate “Van Accessible” sign immediately below.

4. Install a ramp from the parking lot to the entrance which

complies with ADA Accessibility Guideline 4.8 and Cal. Bldg.

Code § 1129B.33.5.

5. Securely fasten the porch floor mats to the porch,

or replace the existing mats with mats that grip the floor.

6. Install handrails which comply with ADA Accessibility

Guideline 4.9 and Cal. Bldg. Code § 1106.

7. Install a threshold which provides a level transition from

the porch to the interior of the building which complies with

ADA Accessibility Guideline 4.1.6(3)(d)(ii), ADA

Accessibility Guideline 4.5.2 and Cal. Bldg. Code §

1133B.2.4.1. F&Rs at 3-4.

Judge Nowinski also recommended that plaintiff be awarded $4000,

the statutory minimum under Cal. Civ. Code § 52(a), for the single

occasion plaintiff was denied access to the Chalet, pursuant to the

Unruh Act. F&Rs at 4-5.

The F&Rs were adopted in full by this court on March 20, 2006.

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II.

 STANDARDS

The Supreme Court has articulated the standard for a finding

of "prevailing party" as whether the party has "succeed[ed] on any

significant issue in litigation which achieves some of the benefit

the parties sought in bringing suit." Hensley v. Eckerhart, 461

U.S. 424, 433 (1983) (citing Nadeau v. Helgemoe, 581 F.2d 275 (1st

Cir. 1978)). The Ninth Circuit, in discussing whether a party has

achieved "prevailing" status, has noted that a party can achieve

that status by establishing a "clear, causal relationship between

the litigation brought and the practical outcome realized."

Rutherford v. Pitchess, 713 F.2d 1416, 1419 (9th Cir. 1983). 

Plaintiff prevailed pursuant to the ADA and the Unruh Act,

which authorizes attorney fees. Specifically, section 12205 of the

ADA authorizes a court, in its discretion, to “allow the prevailing

party, other than the United States, a reasonable attorney's fee,

including litigation expenses, and costs . . . .” 42 U.S.C. 

§ 12205. The Unruh Act provides that an entity which discriminates

in contravention of Section 51 is liable for “any attorney's fees

that may be determined by the court.” Cal. Civ. Code § 52(a). The

court “possesses discretion to determine the amount of the fees,

but not their entitlement.” Engel v. Worthington, 60 Cal.App.4th

628, 632 (1997).

Both the federal and the California courts have adopted the

“lodestar” method for calculating attorney’s fees. Hensley, 461

U.S. 424 (1983); Serrano v. Priest, 20 Cal. 3d 25, 48-49 (1977).

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To determine the appropriate fee amount, the court multiplies the

number of hours reasonably expended in the litigation by a

reasonable hourly rate. Id.

III. 

ANALYSIS

A. PREVAILING PARTY

Defendants have not filed an opposition brief in this action,

nor have they contested the default judgment rendered by this court

in plaintiff’s favor. The court, therefore, concludes that there

is a causal relationship between the litigation brought and the

outcome achieved, a default judgment, and that plaintiff is

entitled to attorney’s fees as the prevailing party. 

B. REASONABLE HOURLY RATE

The appropriate hourly fee should be based on the rates

charged by counsel with similar experience, reputation, and skill

for similar cases in the legal community. See White v. City of

Richmond, 713 F.2d 458 (9th Cir. 1985). Plaintiff’s counsel seeks

$250.00 per hour for work performed on this case. Mr. Stewart has

over twenty-seven years of experience practicing law, with the last

six years devoted exclusively to disabled access cases. Stewart

Dec. at 2. Plaintiff’s counsel supports the requested hourly fee

by citing to four ADA cases decided in this district in which the

lead attorneys were awarded attorneys fees at $250.00 per hour.

Pl.’s Mot. at 5.

After considering Mr. Stewart’s legal experience and the his

motions, the court determines that the rate of $250 adequately

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reflects the prevailing hourly rate in the Sacramento area for

similar work performed by attorneys of comparable skill, experience

and reputation. The court calculates the lodestar figure based on

this hourly rate. 

C. REASONABLENESS OF HOURS BILLED

Plaintiff seeks to recover attorney’s fees for a total of 59.2

hours expended in this litigation. Pl’s Mot. at 5. In arriving

at the lodestar figure, the district court should exclude hours

that are “excessive, redundant, or otherwise unnecessary . . . .”

Hensley, 461 U.S. at 434. 

Plaintiff’s counsel concedes that 59.2 hours is “much more

time than this case should have taken to resolve,” and that under

ordinary circumstances, he would have taken “between 16 and 20

hours” to resolve such a case. Mot. at 4. Counsel explains,

however, that more time was required due to defendant’s failure to

respond to any correspondences, discovery requests, and court

orders. Plaintiff’s declaration sets forth in excruciating details

defendant’s inaction, including that defendant failed to file a

status report, failed to attend a Status Conference, failed to

settle at the Mediation, failed to serve answers to

interrogatories, failed to meet in person as required by Judge

Nowinski, and failed to attempt to resolve this case after entry

of default. Mot. at 3-4. Plaintiff’s counsel was also required

to spend time filing this motion and leaving innumerable phone

messages, sending faxes, and mailing letters to attempt

communication with defendant and urging action in the suit Id.

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Finally, the court notes that due to defendant’s inaction, this

litigation has been prolonged substantially, causing plaintiff’s

counsel to expend needless hours in prosecuting the action. 

Plaintiff filed suit on August 8, 2003, and the suit was not

resolved until April of this year.

The court has examined Mr. Stewart’s papers, declaration, and

accompanying billing records and concludes that 59.2 hours is

reasonable under the circumstances.

D. LITIGATION EXPENSES

Plaintiff also requests litigation expenses related to this

litigation. Plaintiff may recover, as part of the award of his

fees in this matter, litigation expenses pursuant to 42 U.S.C. 

§ 2205. The term “litigation expenses” in Section 12205 of the ADA

has been interpreted to include “the same out-of-pocket expenses

that are recoverable under 42 U.S.C. § 1988.” See Robbins v.

Scholastic Book Fairs, 928 F.Supp. 1027, 1037 (D. Or. 1996). Under

section 1988, plaintiff may recover those out-of-pocket expenses

that “would normally be charged to a fee paying client.” Harris

v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994).

Counsel has submitted invoices in the amount of $50.00 for a

fee paid to First Nationwide Legal Services for a property owner

search and $600.00 which was paid to Disability Access Consultants,

Inc., for inspecting the property at issue and for the Report which

was attached to Plaintiff’s Expert Disclosure. These invoices are

sufficiently detailed, and hence, the court shall award Plaintiff

$650.00 in “litigation expenses” related to this suit.

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 28 U.S.C. § 1920 states: 2

A judge or clerk of any court of the United States may tax as

costs the following: 

(1) Fees of the clerk and marshal; 

(2) Fees of the court reporter for all or any part of

the stenographic transcript necessarily obtained for use

in the case; 

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers

necessarily obtained for use in the case; 

(5) Docket fees under section 1923 of this title; 

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries, fees,

expenses, and costs of special interpretation services

under section 1828 of this title. 

A bill of costs shall be filed in the case and, upon allowance,

included in the judgment or decree. 

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E. BILL OF COSTS

Plaintiff requests $ 208 for other costs related to this suit.

Specifically, plaintiff requests a $150 filing fee, and $58, which

was paid to First Nationwide Legal Services to serve defendant,

Paiman Rahbarian. Plaintiff has tendered to the court invoices

evidencing these costs. Because these expenses are taxable

pursuant to 28 U.S.C. § 1920, the court shall award plaintiff this

requested amount.2

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The amount is based on those fees sufficiently documented 3

by plaintiff’s counsel as follows: 

Attorney’s Fees

Hours Rate Total

Tom Stewart 59.2 $250/hr $14,800.00

Costs & Expenses 858.00

$15,658.00

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IV.

CONCLUSION

Accordingly, plaintiff’s counsel is AWARDED fees and costs in

the amount of $15,658.3

IT IS SO ORDERED. 

DATED: May 12, 2006

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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