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

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SHERRIE WHITE, 

Plaintiff,

v.

GMRI, INC. dba OLIVE GARDEN

#1359; and DOES 1 through 10, 

Defendant. 

CIV-S-04-0465 DFL CMK

MEMORANDUM OF OPINION 

AND ORDER

Plaintiff Sherrie White (“White”) moves for attorneys’ fees

and costs in the amount of $25,196.29 following the settlement of

her ADA accessibility lawsuit against defendant GMRI, Inc.

(“GMRI”). GMRI challenges White’s request for fees and costs on

several grounds. For the following reasons, the court awards

$8,048.62 in attorneys’ fees and costs. 

I. 

White, a quadriplegic, filed this ADA accessibility lawsuit

on March 8, 2003, claiming that she experienced numerous access

barriers during her visit(s) to GMRI’s Olive Garden restaurant. 

(Mot. at 2.) Soon thereafter, GMRI communicated its willingness

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 1 of 14
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

2

to cooperate in resolving the suit. (Orlick Decl. ¶ 6.) In

November 2004, White’s attorney, Mr. Hubbard, provided GMRI with

an expert accessibility report. (Id. ¶ 7.) The report

identified 55 alleged access violations, many of which had not

been previously identified by White. (Opp’n at 11.) 

Furthermore, White did not have standing to raise approximately

21 of the alleged violations, such as issues related to the men’s

restroom or visually impaired persons. (Id. at 8.) Following

receipt of the expert report, GMRI reiterated its desire to

cooperate and resolve the lawsuit. Specifically, GMRI agreed to

make all changes identified in the expert report, except those

for which White lacked standing to bring and the allegations

related to the public sidewalk. (Orlick Decl. Ex. H.) 

GMRI contends that, after several months of negotiations,

the parties reached a settlement agreement on all issues save for

attorneys’ fees. (Id. ¶ 7.) GMRI asserts that Mr. Hubbard

confirmed the existence of this agreement in a voice-mail on

March 30, 2005. (Id.) Mr. Hubbard apparently perceived the

situation differently. In May 2005, he filed a final pretrial

statement in which he continued to seek injunctive relief and

statutory damages for various alleged access violations, despite

GMRI’s protestations that the parties had already resolved all

such issues and that the case was settled. (Id. Ex. E.) 

However, only a few minutes into the pretrial conference,

White agreed to settle the case. Mr. Hubbard conceded that White

lacked standing to bring approximately 1/3 of the identified

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 2 of 14
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

3

claims and abandoned those issues. (Id. ¶ 4.) He also abandoned

White’s claims regarding the public sidewalks, conceding that the

City of Redding was responsible for them. (Id. ¶ 5.) In the

settlement agreement, White released her equitable claims in

exchange for $4,000 in monetary damages and GMRI’s promise to

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

2.) The resolution of attorneys’ fees 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. 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), quoting Hensley v. Eckerhart, 461

U.S. 424, 429, 103 S.Ct. 1999 (1983). 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

two-step 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 numbers of hours reasonably expended on the

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

Certain factors should be taken into consideration when

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 3 of 14
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

 The factors subsumed into the lodestar analysis include: 1

(1) the novelty and complexity of the issues; (2) the special

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). 

 These factors include: (1) the time and labor required; 2

(2) the skill requisite to perform the legal services properly;

(3) the preclusion of other employment by the attorney due to

acceptance of the case; (4) the customary fee; (5) time

limitations imposed by the client or the circumstances; (6) the

undesirability of the case; (7) the nature and length of the

professional relationship with the client; and (8) awards in

similar cases. Morales, 96 F.3d at 364 n.8. 

 GMRI also argues that White should not be awarded any 3

attorneys’ fees and costs because she failed to provide a prelitigation warning notice and a reasonable opportunity to cure

4

calculating the appropriate lodestar figure. “Second, a court 1

may adjust the lodestar upward or downward using a ‘multiplier’

based on factors not subsumed in the initial calculation.” Van 2

Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.

2000). “The lodestar amount is presumptively the reasonable fee

amount, and thus a multiplier may be used to adjust the lodestar

amount upward or downward only in rare and exceptional cases.” 

Id. (internal citations omitted). 

White requests $25,196.29 in attorneys’ fees and litigation

expenses. (Hubbard Decl. ¶ 5.) This amount includes $18,196.25

in attorney, paralegal, and legal assistant fees for 91.75 billed

hours and $7,004.04 in litigation expenses. (Id. ¶¶ 5-6.) The

bulk of the requested litigation expenses consists of $5,463.75

in expert fees. (Id. ¶ 23.) While conceding that White is a

prevailing party, GMRI challenges the rates and hours requested

on several grounds. (Opp’n at 7-9.) Additionally, GMRI argues 3

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 4 of 14
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

the violations. (Opp’n at 2-7.) GMRI bases its argument almost

entirely on a recently decided case from the Central District of

California, Doran v. Del Taco, Inc., __ F.Supp.2d __, 2005 WL

1389270 (C.D.Cal. June 9, 2005), in which Judge Taylor held that

no attorneys’ fees should be recoverable under the ADA in the

absence of a pre-litigation notice. While the court finds some

of Doran’s reasoning persuasive on policy grounds, it does not

agree that the lack of pre-filing notice is an automatic bar to

all attorneys’ fees. The statute does not impose such a

requirement, nor is such notice a typical prerequisite to

attorney’s fee awards in civil rights cases. 

 GMRI has submitted evidentiary objections to Mr. 4

Hubbard’s declaration in support of the motion for attorneys’

fees. Several of these objections are to statements in Mr.

Hubbard’s declaration that the court does not rely upon. 

Therefore, the court need not address these objections.

(Evidentiary Objections ¶¶ 3,4,6,7.) GMRI’s other objections are

to the itemization and documentation of attorney and paralegal

time submitted by Mr. Hubbard. These time summaries were

contemporaneously prepared by Mr. Hubbard’s law office, and Mr.

Hubbard states that he has personal knowledge of the hours he and

his staff members worked on the case. (Hubbard Decl. ¶ 7.) The

court finds these documents to be properly submitted in support

of White’s fee request. See Fischer, 214 F.3d at 1121 (noting

that contemporaneous time records are the preferred form of

evidentiary support for attorneys’ fees requests but that even

fee requests based upon reconstructed files are sufficient). 

Accordingly, GMRI’s evidentiary objections to this documentation

on the grounds of hearsay, lack of authentication, best evidence,

and lack of personal knowledge are denied. 

5

that White’s request for expert witness fees should be denied as

insufficiently documented. (Id. at 14-15.) 4

A. Reasonable Rate

Mr. Hubbard requests the following rates for the hours

billed: $250 per hour for his time, $175 per hour for his

associate, $75 per hour for his paralegals, and $65 per hour for

his legal assistants. (Hubbard Decl. ¶ 6.) His requested rates

for himself and his associate are consistent with what courts in

this District routinely award to Mr. Hubbard in similar cases. 

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 5 of 14
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

6

E.g., Hooper v. Calny, CIV-S-03-0167 (April 25, 2005 E.D. Cal.). 

The court finds these rates to be reasonable.

GMRI challenges White’s entitlement to separate fees for Mr.

Hubbard’s paralegals and legal assistants. (Opp’n at 13.) GMRI

contends that these hours are overhead expenses that should be

subsumed within Mr. Hubbard’s billing rates. (Id.) With regard

to the paralegals, federal courts have consistently held that

time spent by paralegals is compensable at market rates

separately from attorney services if the local practice is to

bill for their services in that manner. E.g., Missouri v.

Jenkins, 491 U.S. 274, 285-87, 109 S.Ct. 2463 (1989); United

Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403,

407-08 (9th Cir. 1990). Mr. Hubbard states that the local

practice is to bill separately for paralegal time. (Reply at 13-

14.) Accordingly, these hours are compensable, and the court

finds that the requested $75 an hour rate is reasonable. E.g.,

Hooper v. Calny, CIV-S-03-0167 (April 25, 2005 E.D. Cal.)

(finding this rate to be reasonable for Mr. Hubbard’s

paralegals). 

However, the court declines to grant any fees for the legal

assistants because White has failed to provide any basis to

determine a reasonable fee for such services. The prevailing

party bears the burden of producing satisfactory evidence of the

appropriate market rate. Blum v. Stenson, 465 U.S. 886, 895

n.11, 104 S.Ct. 1541 (1984). Here, Mr. Hubbard requests a rate

for his legal assistants that is essentially equivalent to the

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 6 of 14
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

 GMRI also argues that 3.80 hours Mr. Hubbard billed for 5

drafting four sets of discovery requests were unnecessary given

that GMRI had already agreed to make its facility fully

accessible to disabled patrons. (Id.) The court need not reach

this issue because, as discussed below, it denies fees for these

hours on a different ground. 

7

reasonable paralegal rate. This rate is not reasonable, and

White has provided the court with no other information from which

a reasonable rate can be determined. Accordingly, the court

declines to award fees for Mr. Hubbard’s legal assistants. 

B. Reasonable Hours

GMRI challenges the appropriateness of White’s requested

hours, asserting that many of them are unnecessary, excessive,

fraudulent, and/or redundant. (Opp’n at 10.) First, GMRI

contends that the 17 hours Mr. Hubbard billed for the final

pretrial conference were unnecessary because of GMRI’s detailed

settlement offer made prior to the pretrial conference. (Id.) 5

In fact, it was GMRI’s understanding that the parties had reached

a settlement agreement that would have resolved the entire case. 

(Id.) 

The court agrees that these hours were unnecessary. In

spite of GMRI’s detailed offer, Mr. Hubbard persisted in

demanding remediation of all of the alleged violations, only to

concede within the first ten minutes of the pretrial conference

that White lacked standing to raise approximately 1/3 of the

alleged violations. (Id.) The speed with which Mr. Hubbard

agreed to settle the case and conceded these claims suggests that

the conference, and the 17 hours of preparation for the

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 7 of 14
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

8

conference, were not necessary. Accordingly, the court denies

fees for these 17 hours. 

Second, GMRI argues that several of Mr. Hubbard’s requested

hours are excessive. (Id. at 12.) For instance, GMRI takes

issue with several of Mr. Hubbard’s entries for the preparation

of boilerplate letters and forms that he has used in other cases. 

(Id.) Specifically, GMRI argues that it is inappropriate to bill

.80 hours and 3.80 hours, respectively, for the preparation of a

settlement demand letter and discovery requests identical to

those used in earlier cases. (Id.) Additionally, GMRI argues

that Mr. Hubbard’s use of eleven different timekeepers on this

lawsuit is excessive. (Id.) 

The court agrees with GMRI concerning the hours billed for

the preparation of the boilerplate documents. The preparation of

such documents is a mere secretarial task for which no fees shall

be awarded. However, the court declines to reduce White’s

requested hours based on the number of staff members used on the

case. For one, it is the overall number of hours billed that is

critical, not how many individuals performed the work. 

Furthermore, the court has already declined to compensate White

for Mr. Hubbard’s legal assistants, thereby also addressing

GMRI’s concern about over-staffing. 

Third, GMRI challenges the veracity of the following hours

requested by White: (1) 2.6 hours requested by Mr. Hubbard for

settlement discussions with White because White admitted in her

deposition that she does not discuss settlements with Mr.

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 8 of 14
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

 GMRI also asserts that White requested 6.8 hours for 6

Scott Hubbard’s work on the case when the records show that he

only worked 2.8 hours. (Orlick Decl. ¶ 8(d)(12).) GMRI is

mistaken. White only requests 2.8 hours for Scott Hubbard’s

time. (Hubbard Decl. ¶ 6.) 

9

Hubbard; (2) 1 hour requested by Mr. Hubbard for the preparation

of a written fee agreement because White does not recall having a

fee agreement with Mr. Hubbard; (3) the duplicate entries of .30

hours on July 16, 2004 for composition of the same letter; (4)

1.2 hours requested by Scott Hubbard for a telephone conversation

with defense counsel on June 8, 2005 because, according to

defense counsel, the conversation only lasted 15 minutes; and (5)

6 hours requested by Mr. Hubbard for the site inspection of the

restaurant because, according to defense counsel, the inspection

lasted only one hour. (Orlick Decl. ¶ 8.) In total, these

arguments challenge 9.85 hours. 

Mr. Hubbard provides no response to these challenged hours. 

Accordingly, White fails to meet her burden of establishing the

reasonableness of these hours. The court, therefore, denies fees

for these 9.85 hours. 

In sum, the court strikes 31.45 of White’s requested hours

as unnecessary, excessive, or insufficiently supported. In

addition, for the reasons described above, the court also denies

fees for the 14.50 hours Mr. Hubbard’s legal assistants spent on

the case. White is entitled to fees for the remaining 45.80

hours. 

6

C. Reduction of the Lodestar Figure

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 9 of 14
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

10

GMRI argues that several factors counsel in favor of

reducing White’s lodestar figure. First, GMRI argues that the

court should reduce any fee award because of the nature of Mr.

Hubbard’s litigation practice. (Opp’n at 9.) Specifically, GMRI

contends that: (1) this case does not raise novel or complex

questions of law, given that given that Mr. Hubbard has filed

nearly 500 ADA accessibility lawsuits, all involving similar

issues; (2) this is not an “undesirable case,” given that

prosecuting such cases involves little work and often results in

a quick settlement and the right to lucrative attorneys’ fees;

(3) there is little time and labor required for prosecuting such

cases because Mr. Hubbard reuses pleadings, form letters, and

even settlement demands; and (4) Mr. Hubbard and White have a

longstanding professional relationship which provides Mr. Hubbard

significant benefits. (Id.) 

The court declines to reduce the lodestar amount based on

these factors. GMRI’s arguments amount, in essence, to a general

criticism of Mr. Hubbard’s legal practice. These criticisms are

insufficient to make this one of the “rare and exceptional” cases

in which a downward departure from the lodestar figure is

appropriate. Van Gerwen, 214 F.3d at 1045. 

Second, GMRI argues that the lodestar figure should be

reduced to account for White’s limited success. (Opp’n at 7-8.) 

GMRI contends that White achieved only limited success because

she conceded at the pretrial conference that: (1) she lacked

standing to bring approximately 1/3 of the identified claims; and

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 10 of 14
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

11

(2) GMRI was not responsible for fixing alleged violations in the

public sidewalk. (Id. at 8.) Accordingly, the settlement

agreement provided her approximately 2/3 of the relief sought. 

(Id.) In response, White argues her fee award should not be

reduced because the work on her successful and unsuccessful

claims was inextricably intertwined. (Reply at 11.) 

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 her

claims. Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895,

901 (9th Cir. 1995). In such cases, courts must follow a

two-part analysis in determining whether to reduce an attorneys’

fee award: 

First, the court asks whether the claims upon which the

plaintiff failed to prevail were related to the

plaintiff’s successful claims. If unrelated, the final

fee award may not include time expended on the

unsuccessful claims. If the unsuccessful and

successful claims are related, then the court must

apply the second part of the analysis, in which the

court evaluates the ‘significance of the overall relief

obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.’ If the

plaintiff obtained ‘excellent results,’ full

compensation may be appropriate, but if only ‘partial

or limited success’ was obtained, full compensation may

be excessive. Such decisions are within the district

court's discretion. 

Id. at 901-02. In determining whether the unsuccessful and

successful claims are related, 

the test is whether relief sought on the unsuccessful

claim is intended to remedy a course of conduct

entirely distinct and separate from the course of

conduct that gave rise to the injury on which the

relief granted is premised. Thus, the focus is to be

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 11 of 14
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

12

on whether the unsuccessful and successful claims

arose out of the same course of conduct. 

Id. at 903, quoting Thorne v. City of El Segundo, 802 F.2d 1131,

1141 (9th Cir. 1986). If a court finds the unsuccessful claims

to be unrelated to the successful claims, it may either attempt

to identify specific hours that should be eliminated or simply

reduce the award to account for the limited success. Id. at 904.

Applying the above analysis to the present case, the court

finds it appropriate to reduce the lodestar figure based on

White’s limited success. Each of White’s alleged violations

represent different and unrelated claims. The alleged violations

are premised on different facts and require the application of

different sections of the ADA Accessibility Guidelines to

determine liability. Claims related to the sidewalk, for

example, have nothing in common with claims related to the

bathroom. Moreover, the inclusion of claims for which plaintiff

has no standing or for which defendant has no responsibility

needlessly complicate the litigation and inflict unnecessary

costs on defendant. Such over-charging should be discouraged. 

Because Mr. Hubbard’s time entries cannot be easily divided

between the successful and unsuccessful claims, the court reduces

White’s fee award by 1/3 to account for her limited success.

D. Expert Witness Fees

Finally, GMRI challenges White’s request for $5,465.75 in

expert witness fees. (Opp’n at 14.) GMRI contends that the

one-line, lump sum invoice Mr. Hubbard provides the court lacks

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 12 of 14
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

13

sufficient information from which to determine whether the cost

is reasonable. (Id. at 14.) The court agrees. The expert’s

invoice does not list the hourly rate charged or the hours

worked; rather, it only states that the fee charged was for the

expert’s performance of a site inspection and the preparation of

an expert report. (Hubbard Decl. Ex. C.) The lack of such basic

information makes it impossible to determine whether the amount

requested is reasonable. 

White contends that the invoice, though simple, is

sufficient because she provided GMRI a copy of her expert report

and an opportunity to depose her expert. (Reply at 14.) 

Accordingly, she argues, GMRI had sufficient opportunity to

discover who was involved in the preparation of the expert

report, his fee, and the amount of time it took. (Id.) However,

it is White’s responsibility, not GMRI’s, to document the fees

and costs she is requesting as part of an attorneys’ fee award,

and her documentation must be sufficiently specific for the court

to conclude that the amount requested is reasonable. Hensely,

461 U.S. at 434-34. Her documentation lacks this requisite

specificity. Accordingly, the court denies White her requested

expert witness fees. 

III. 

Based on the forgoing discussion, White is awarded $6,501.85

for attorneys’ fees, calculated as follows: 

Attorneys/Assistants Hours Rate Total

Lynn Hubbard (attorney) 35.10 $250 $8,775

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 13 of 14
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

14

Scott Hubbard (associate) 1.85 $175 $323.75

Paralegals 8.85 $75 $663.75

Sub-Total: 45.80 $9,762.50 

Negative Multiplier (1/3): $6,508.33

Additionally, the court awards White her requested litigation

costs minus the requested expert witness fees, totaling

$1,540.29. In sum, the court awards White $8,048.62 in

attorneys’ fees and costs. 

IT IS SO ORDERED.

Dated: 8/19/2005

DAVID F. LEVI

United States District Judge

Case 2:04-cv-00465-DFL-CMK Document 28 Filed 08/22/05 Page 14 of 14