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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAMES SANFORD, 

Plaintiff,

v.

GMRI, INC. dba RED LOBSTER, 

Defendant. 

CIV-S-04-1535 DFL CMK

MEMORANDUM OF OPINION 

AND ORDER

Plaintiff James Sanford (“Sanford”) moves for attorneys’

fees and costs in the amount of $18,268.09 following the

settlement of his ADA accessibility lawsuit against defendant

GMRI, Inc. (“GMRI”). GMRI challenges the reasonableness of the

requested fee award. For the following reasons, the court awards

$8,132.67 in attorneys’ fees and costs. 

I.

Sanford, a quadriplegic, filed his lawsuit on August 5,

2004, claiming that he experienced numerous access barriers on

his visits to GMRI’s Red Lobster restaurant. On August 18, 2005,

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the parties filed a settlement agreement and the case was

dismissed. Sanford released all of his equitable relief claims

in exchange for $8,000 in monetary damages and GMRI’s promise to

remove or remedy the remaining architectural barriers. (Mot. at

2.) The resolution of the attorneys’ fees issue was left for

this motion. (Id.) 

II.

The ADA provides that a court “in its discretion, may allow

the prevailing party . . . a reasonable attorney’s fee, including

litigation expenses, and costs.” 42 U.S.C. § 12205. Courts have

held that a prevailing party under this statute “should

ordinarily recover an attorney’s fee unless special circumstances

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

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

plaintiff who enters into a legally enforceable settlement

agreement is considered a prevailing party. Id. 

The calculation of an appropriate fee award involves a twostep process. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th

Cir. 2000). “First, the court must calculate the ‘lodestar

figure’ by taking the number of hours reasonably expended on the

litigation and multiplying it by a reasonable hourly rate.” Id. 

Certain factors, such as the results obtained or the special

skill and experience of counsel, should be taken into

consideration when calculating the appropriate lodestar figure. 

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

1996). “Second, a court may adjust the lodestar upward or

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 GMRI contends that Sanford is not entitled to any 1

attorneys’ fees because he failed to provide it with a prelitigation warning notice and a reasonable opportunity to cure

the violations, citing Doran v. Del Taco, Inc., 373 F.Supp.2d

1028 (C.D.Cal. 2005). (Opp’n at 2.) GMRI acknowledges that the

court already rejected this argument in White v. GMRI, CIV-S-04-

0465 (August 22, 2005 E.D.Cal.). Therefore, the court will not

address it again here. 

 GMRI filed evidentiary objections to various declarations 2

submitted with Sanford’s reply brief. Several of these

objections are to statements in declarations that the court does

not rely upon. Therefore, the court need not address these

objections. (Evidentiary Objections at 3-10.) GMRI’s other

objections are to the MeLisa Dotson and Bonnie Vonderhaar

declarations. (Id. at 2.) GMRI argues that plaintiff cannot

submit new evidence with a reply brief and asks that the evidence

be excluded. GMRI cites Lujan v. Nat’l Wildlife Fed., 497 U.S.

871, 894-895 (1999), to support its position. However, in Lujan,

the court found that submission of new evidence with a reply was

untimely under Fed.R.Civ.P. 56(c), which requires such affidavits

be submitted prior to the day of the hearing. In addition, Lujan

found that the filing of new evidence violated the court’s

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downward using a ‘multiplier’ based on factors not subsumed in

the initial calculation of the lodestar.” Van Gerwen v.

Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). 

However, the lodestar amount is generally only adjusted in “rare

and exceptional cases.” Id. 

Sanford requests $18,268.09 in attorneys’ fees and costs. 

(Mot. at 5.) This amount includes $11,300 in attorney and

paralegal fees for 61.45 billed hours and $6,968.09 in litigation

expenses and costs. (Id.) The bulk of the requested litigation

expenses consists of $5,513.75 in expert’s fees. (Id.) While

conceding that Sanford is the prevailing party, GMRI challenges

the hours requested on several grounds. In addition, GMRI argues 1

that Sanford’s request for expert witness fees should be denied

as insufficiently documented. 

2

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briefing order in that case. Here, there is no such briefing

schedule and Rule 56(c) does not apply. Therefore, the court

finds these documents to be properly submitted in support of

Sanford’s fee request. GMRI’s evidentiary objections to these

declarations are denied. 

4

A. Reasonable Hours

1. Limited Success

GMRI argues that the lodestar figure should be reduced to

reflect Sanford’s limited success. (Opp’n at 12-13.) One of the

factors courts must consider in determining the lodestar figure

is the “results obtained” in the litigation, especially where a

plaintiff did not succeed on some of his claims. Schwarz v.

Sec’y of Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995). 

In such cases, a two-part analysis is applied. Id. First, the

court determines whether the plaintiff’s unsuccessful claims were

related to his successful claims. Id. If they are unrelated,

then the final fee amount should not include time spent on

unsuccessful claims. Id. If they are related, the court must

“evaluate[] the significance of the overall relief obtained by

the plaintiff in relation to the hours reasonably expended on the

litigation.” Id. 

In this case, Stanford’s successful claims are unrelated to

his unsuccessful ones. The alleged violations are premised on

different facts and require the application of different sections

of the ADA Accessibility Guidelines to determine liability. 

Therefore, the fee award must be reduced to match the level of

success Sanford obtained.

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GMRI contends that Sanford only achieved two-thirds of the

relief he initially sought because Sanford conceded that: (1) he

lacked standing to bring approximately one-third of the

identified claims; and (2) GMRI was not responsible for fixing

alleged violations in the public sidewalk. (Opp’n at 5-7.) 

Sanford disputes GMRI’s characterization of his concession on

these claims. He argues that he did not concede that he lacked

standing, but anticipated that the court would reject his

standing arguments in light of its recent decision in Martinez v.

Longs, Civ-S-03-1843 (August 26, 2005 E.D.Cal.). This argument

is not persuasive. 

It is undisputed that Sanford was not successful on these

claims. A claim is deemed unsuccessful “[w]here the plaintiff

has failed to prevail on [it].” Hensley v. Eckerhart, 461 U.S.

424, 440, 103 S.Ct. 1933 (1983). Therefore, the motivation

behind Sanford’s concession is not controlling. Schwarz, 73 F.3d

at 902 (when reviewing whether a party has achieved limited

success or not, “the reason for a claim’s dismissal makes [no]

difference”). Moreover, Sanford admits that he knew the court

would reject these claims based on his lack of standing. (Reply

at 6.) 

The inclusion of claims for which a plaintiff has no

standing needlessly complicates the litigation and inflicts

unnecessary costs on defendant. Such over-charging should be

discouraged. Because Hubbard’s time entries cannot be easily

divided between the successful and unsuccessful claims, the court

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reduces Sanford’s fee award by one-third to account for his

limited success. Id. at 904 (allowing for reduction in the total

award where the court finds the unsuccessful claims to be

unrelated to the successful claims). 

 2. Other Factors

GMRI also challenges the appropriateness of Hubbard’s

requested hours, asserting that many of them are unnecessary,

excessive, and/or redundant. (Opp’n at 3-12.) GMRI advances

several arguments in support of this assertion. 

First, it argues that many of Hubbard’s requested hours were

unnecessary because Hubbard expended resources on claims which he

knew Sanford lacked standing to pursue. (Id. at 3-7.) However,

this is already accounted for in the reduction addressed above. 

Second, GMRI argues that Hubbard’s fees are excessive. For

example, GMRI argues that Hubbard’s bill for 0.80 hours for

preparation of his boilerplate settlement demand letter was

unreasonable. (Id. at 7.) Hubbard responds that the amount of

time spent drafting the settlement letter was not excessive as he

also reviewed the file and associated documents. (Reply at 5-6.) 

GMRI makes similar arguments as to other entries, challenging a

total of 2.25 hours. The court is not persuaded that these hours

were excessive or unnecessary and declines to strike them. The

court notes that these hours will be reduced by one third in any

event. 

In addition to the above charges, GMRI challenges the time

billed for plaintiff’s motion to compel a site inspection. 

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(Orlick Decl. ¶¶ 7-8.) It argues that there was no need to file

the motion. (Id.) In another case between GMRI and plaintiff’s

counsel, GMRI challenged the lack of specificity in plaintiff’s

request for a site inspection. (Id.) GMRI prevailed on its

challenge, and the court restricted the parameters of the

inspection. (Id.) GMRI responded with the same parameters when

Sanford requested a site inspection here. (Id.) In response,

Sanford filed a motion to compel. (Id.) In the end, plaintiff’s

counsel withdrew the motion and agreed to GMRI’s parameters. 

(Id.) However, Hubbard billed 7.0 hours on the motion to compel

the inspection. (Id.) The court agrees with defendant that

these hours were not reasonably expended and should not be

awarded. Similarly, GMRI challenges the time Hubbard took to

read its responses and objections to discovery requests. (Id. ¶

11.) It submitted the same responses and objections in the two

previous cases filed against it by Hubbard, so it argues that it

should have only taken 0.50 hours, not 3.65 to review the

responses here. (Id.) The court agrees that these hours are

excessive given the repetitive nature of the litigation

prosecuted by plaintiff’s counsel. The court will reduce these

hours to 1 hour. 

Third, GMRI challenges the reasonableness of Sanford’s

claimed paralegal fees. (Opp’n at 8-9.) Sanford seeks to recover

paralegal-level rates for individuals that Hubbard has previously

categorized as legal assistants. Under California Business &

Professional Code § 6450(c), a person is qualified as a paralegal

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26 A “qualified attorney” is an attorney who has been 3

admitted to and has practiced before federal or California courts

for at least three years.

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if: (1) she possesses a certificate of completion of a paralegal

program from an ABA-approved or other accredited post-secondary

institution; (2) she possesses a baccalaureate degree and has

completed one year of law-related experience under the

supervision of a qualified attorney; or (3) she possesses a high 3

school diploma or GED and has completed three years of lawrelated experience under the supervision of a qualified attorney

before December 31, 2003. GMRI challenges each of the five

individuals listed as paralegals. 

First, it alleges that Sanford must present the court with a

“written declaration . . . stating that [each individual] is

qualified to perform paralegal tasks.” Cal. Bus. & Prof. Code §

6450(c)(3). Hubbard’s declaration generally states that each of

the individuals is qualified to perform paralegal tasks. 

(Hubbard Decl. ¶ 22.) Therefore, Sanford has met this

requirement. 

Next, GMRI challenges each of the individuals based on her

failure to meet the § 6450 requirements listed above. (Opp’n at

9-11.) Sanford concedes that Christa Duncan will not be a

qualified paralegal until she receives her certificate of

completion from a paralegal program. (Reply at 9.) In addition,

it appears that Alisha Petras is not a qualified paralegal

because: (1) she does not have a baccalaureate degree or

paralegal certification; and (2) Sanford has not shown that she

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 Sanford asserts that Petras was billed at a paralegal rate 4

in White and that the same fee should be paid here. However, the

issue was not squarely presented in White; therefore, Sanford’s

argument is unavailing. 

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completed three years of law-related experience under a qualified

attorney before December 2003. (Hubbard Decl. ¶ 22.) Finally, 4

MeLisa Dotson and Elva Garcia hold baccalaureate degrees, but

they did not complete their one year of law-related service under

a qualified attorney until June of this year. (Reply at 6;

Dotson Decl. ¶ 4.) Therefore, any time attributed to Dotson and

Garcia before June 2005 should not have been billed at a

paralegal rate. 

On the other hand, GMRI’s challenge to Bonnie Vonderhaar

should fail. GMRI argues that Vonderhaar does not qualify

because Sanford fails to present evidence that she completed one

year of legal experience under the supervision of a qualified

attorney. (Opp’n at 9-10.) However, she satisfies § 6450(c)

because she holds a paralegal certificate from a NALA-approved

institution. Therefore, she is a qualified paralegal in

California. (Vonderhaar Decl. ¶ 3.) 

In sum, Duncan and Petras should have been categorized as

legal assistants for the entire case, and Dotson and Garcia

should have been categorized as legal assistants for any time

billed before June 2005. Sanford does not provide a proposed fee

for legal assistants. Therefore, Sanford can only recover

paralegal rates for Vonderhaar’s time and Dotson’s and Garcia’s

time post-June 2005. The resulting fee award is $225.00 out of

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 GMRI also argues that the court should reduce any fee 5

award because of the nature of plaintiff’s litigation tactics. 

(Opp’n at 12.) GMRI argues that this case does not raise novel

or complex questions of law, is not an “undesirable case,” and

does not require a lot of time and labor. (Opp’n at 12.) In

White, the court rejected these arguments, finding that GMRI was

simply criticizing Hubbard’s practice. The same arguments are

rejected here. 

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the total $1,680.00 billed, or a reduction of $1,455.00.5

B. Expert Witness Fees

GMRI challenges Sanford’s request for $5,465.75 in expert

witness fees. (Opp’n at 13-14.) It argues that the invoice is

insufficiently specific because it fails to break down the people

involved, the hours worked, or the rates claimed. (Id. at 13.) 

GMRI also disputes the recovery of fees paid to “Robert with

Baran draftsman.” (Id.) “Robert” is not identified, and the

invoice does not specify what work was done. (Id.) GMRI asserts

that it has construction and design departments equipped to

perform such drawings, so it is not clear why any draftsman work

was necessary. (Id.)

A plaintiff does not need to provide detailed descriptions

of the time spent down to the minute, but the documentation has

to be sufficiently specific to allow the court to conclude that

the amount requested is reasonable. Hensley, 461 U.S. at 437. 

Here, the expert lists four separate entries: (1) “site

inspection with drive and burning pictures to CD” for 6 hours;

(2) “work on report” for 4.25 hours; (3) “work on report” for 3

hours; and (4) “finish report” for 1.5 hours. (Hubbard Decl. Ex.

C.) His hourly rate is listed as $175.00. (Id.) GMRI argues

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 Hubbard requests the following rates for the hours billed: 6

$250 per hour for his time, $175 per hour for his associate, and

$75 per hour for his paralegals. (Hubbard Decl. ¶ 6.) GMRI does

not challenge these rates. In addition, these rates are

consistent with what courts in this District routinely award to

Hubbard in similar cases. See e.g., Hooper v. Calny,

CIV-S-03-0167 (April 25, 2005 E.D. Cal.). Therefore, the court

finds the requested rates are reasonable. 

11

that the first entry is unreasonable because there is no way to

determine how much time the expert spent on each task. (Opp’n at

13.) In addition, it argues that the “work on report” and

“finish report” descriptions are too vague. (Id.) The court

disagrees. The bill is specific enough to determine that the

amount requested is reasonable. 

However, at least one-third of the inspector’s time was

spent working on claims on which Sanford did not prevail. 

Therefore, the expert fees for the report should be reduced onethird as well; from $2,581.25 to $1,720.83. In addition, the

draftsman’s invoice does not provide sufficient information to be

evaluated. Therefore, that amount is struck in its entirety. As

a result, the overall expert fees are reduced from $5,513.75 to

$1,720.83. 

III. 

Based on the forgoing discussion, Sanford is awarded

$4,957.50 for attorneys’ fees, calculated as follows: 

Attorneys/Assistants Hours Rate Total 6

Lynn Hubbard (attorney) 27.50 $250 $6,875.00

Scott Hubbard (associate) 1.90 $175 $332.50

Paralegals 3.00 $75 $225.00

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Sub-Total: $7,432.50 

Limited Success Reduction (1/3): $4,957.50

In addition, the court awards Sanford’s requested litigation

expenses and costs minus a portion of the requested expert

witness fees, totaling $3,175.17. In sum, the court awards

Sanford $8,132.67 in attorneys’ fees and costs. 

IT IS SO ORDERED.

Dated: 11/11/2005

DAVID F. LEVI

United States District Judge

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