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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

NGOC LAM CHE,

Plaintiff,

v.

SAN JOSE/EVERGREEN COMMUNITY 

COLLEGE DISTRICT FOUNDATION, et 

al.,

Defendants.

Case No. 17-cv-00381-BLF 

ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFF’S

MOTION FOR ATTORNEYS’ FEES

AND COSTS; AND DIRECTING 

PARTIES TO FILE STIPULATED 

JUDGMENT OR DISMISSAL ON OR 

BEFORE AUGUST 31, 2018

[Re: ECF 58]

Plaintiff Ngoc Lam Che seeks statutory attorneys’ fees and costs after settlement of his 

disability discrimination lawsuit against Defendants San Jose Evergreen Community College 

District (“District”) and Imwalle Properties, Inc. (“Imwalle”). Che, who is physically disabled, 

claimed that he visited a business complex (“Property”) owned and/or operated by Defendants at 

least once a week for dining and entertainment, and that the Property contained a number of illegal 

barriers, such as improperly sized accessible parking spaces and access aisles. 

Che’s motion for attorneys’ fees and costs is GRANTED IN PART AND DENIED IN 

PART for the reasons discussed below.

 I. BACKGROUND

Che filed this action on January 25, 2017, asserting claims for disability discrimination

under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12010 et seq., and 

California’s Unruh Civil Rights Act, Cal. Civil Code §§ 51, 52. See Compl., ECF 1. The District 
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answered the complaint and Imwalle moved to dismiss for lack of subject matter jurisdiction. See 

District Answer, ECF 16; Imwalle’s Motion to Dismiss, ECF 22. Che and Imwalle then engaged 

in a skirmish of administrative motions, with Che seeking sanctions for Imwalle’s asserted failure 

to comply with General Order 56 and Imwalle asking to stay the joint site inspection and 

discovery pending disposition of its motion to dismiss. See ECF 25-33. The Court initially struck 

Imwalle’s motion to dismiss as being filed in violation of General Order 56, but it subsequently

reinstated the motion and ultimately denied it. See Order Striking Motion to Dismiss, ECF 32; 

Order Granting Defendant Imwalle’s Motion for Administrative Relief, ECF 34; Order Denying 

Defendant Imwalle’s Motion to Dismiss, ECF 40. Imwalle answered in August 2017. See

Answer, ECF 42.

In December 2017, the parties notified the Court that they had reached a conditional 

settlement, with the only matter remaining for determination by the Court being Che’s entitlement 

to attorneys’ fees. See Notice, ECF 52. On January 29, 2018, the parties filed a joint status report, 

advising that Che’s claims had been settled for damages and costs, with the understanding that 

Che would file a motion for attorneys’ fees. See Status Report, ECF 56. 

Che’s motion for attorneys’ fees and costs was filed on February 6, 2018 and noticed for 

hearing on April 5, 2018. See Motion, ECF 58. Pursuant to a stipulated briefing schedule which 

was approved by the Court, any opposition was due by February 27, 2018. See Stipulation and 

Order, ECF 61. Defendants did not file an opposition by that deadline, and on March 14, 2018, 

Che filed a reply asserting that Defendants’ failure to oppose constituted a concession to the 

motion. See Reply, ECF 62. On March 15, 2018, Defendants filed a motion to change time to 

oppose Che’s motion for attorneys’ fees and costs, explaining that “on the date Defendants’ 

opposition was due, Defendants’ counsel fell violently ill for several days, severely impacting 

Defense counsel’s work schedule and personal life.” Motion to Change Time at 1, ECF 65. 

Defendant simultaneously filed a substantive opposition to the motion. See Opposition, ECF 64. 

Che opposed Defendants’ motion to change time, asserting among other things that permitting the 

late reply would deprive Che of the opportunity to file a substantive reply. See Opposition to 

Motion to Change Time, ECF 67. The Court granted Defendants’ motion to change time, 
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accepting Defendants’ opposition to the attorneys’ fees motion, and granted Che leave to file a 

substantive reply. See Order, ECF 69. Che filed a substantive reply on March 27, 2018, along 

with a revised billing statement. See Substantive Reply, ECF 71. Defendants objected to the 

submission of Che’s new evidence and arguments based thereon, asking that the Court either 

strike them or permit Defendants to file a sur-reply. See Objection, ECF 73. The Court overruled 

Defendants’ objection but granted Defendants leave to file a sur-reply. See Order, ECF 74. 

Defendants filed a sur-reply on April 13, 2018. See Sur-reply, ECF 75. The Court took the 

motion under submission without oral argument.

II. DISCUSSION

“In a case pursued under the ADA, a court, ‘in its discretion, may allow the prevailing 

party . . . a reasonable attorney’s fee.’” Jankey v. Poop Deck, 537 F.3d 1122, 1129 (9th Cir. 2008) 

(quoting 42 U.S.C. § 12205). Such award may include “litigation expenses, and costs.” 42 U.S.C. 

§ 12205. Additionally, a prevailing plaintiff is entitled to attorneys’ fees under the Unruh Act. 

See Cal. Civ. Code § 52. Defendants do not dispute that Che is a prevailing party or that Che is 

entitled to “a reasonable award of attorney’s fees.” Opp. at 1, ECF 64. The parties’ dispute 

centers on whether the attorneys’ fees requested by Che are reasonable.

In his moving papers, Che requests attorneys’ fees in the amount of $38,475.00. In his 

substantive reply, Che requests an additional $7,387.50 incurred in litigating this attorneys’ fees 

motion, for total requested fees in the amount of $45,862.50. Substantive Reply, ECF 71. 

Defendants contend that the requested fees are unreasonable, and ask the Court to award only 

$562.50 or, at most, $9,915.00.

A. Lodestar Method

Courts in the Ninth Circuit determine reasonable attorneys’ fees using the lodestar method. 

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). “The ‘lodestar’ is calculated 

by multiplying the number of hours the prevailing party reasonably expended on the litigation by a 

reasonable hourly rate.” Id. (internal quotation marks and citation omitted). The party seeking 

attorneys’ fees bears the burden of demonstrating that the rates requested “are in line with those 

prevailing in the community for similar services by lawyers of reasonably comparable skill, 
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experience and reputation.” Id. at 980. Generally, “the relevant community is the forum in which 

the district court sits.” Id. at 979. Typically, “affidavits of the plaintiffs’ attorney and other 

attorneys regarding prevailing fees in the community and rate determinations in other cases . . . are 

satisfactory evidence of the prevailing market rate.” Id. at 980 (internal quotation marks, citation, 

and brackets omitted). “The party opposing the fee application has a burden of rebuttal that 

requires submission of evidence to the district court challenging the accuracy and reasonableness 

of the . . . facts asserted by the prevailing party in its submitted affidavits.” Id. (internal quotation 

marks and citation omitted).

“Although in most cases, the lodestar figure is presumptively a reasonable fee award, the 

district court may, if circumstances warrant, adjust the lodestar to account for other factors which 

are not subsumed within it.” Camacho, 523 F.3d at 978 (internal quotation marks and citation 

omitted). For example, “a district court may reduce attorneys’ fees by a percentage, so long as the 

court sets forth clear and concise reasons for adopting this approach.” Id. at 982. The Ninth 

Circuit has recognized that “percentages indeed are acceptable, and perhaps necessary, tools for 

district courts fashioning reasonable fee awards.” Gates v. Deukmejian, 987 F.2d 1392, 1400 (9th 

Cir. 1992). However, the district court may not impose an arbitrary percentage reduction – the 

court must offer “some explanation for the precise reduction chosen.” Ferland v. Conrad Credit 

Corp., 244 F.3d 1145, 1151 (9th Cir. 2001). 

B. Hourly Rate

Che was represented by one attorney in this matter, Pamela Tsao, who requests an hourly 

rate of $375.00. Ms. Tsao obtained her law degree at the University of California Berkeley School 

of Law in 2009 and she was admitted to the California Bar the same year. Tsao Decl. ¶¶ 6-7, ECF 

59. She worked as an associate at Sheppard Mullin Richter & Hampton from 2009 to 2011, 

focusing on civil litigation in the areas of landlord tenant rights and business contracts. Id. ¶ 7. 

Thereafter, she worked as an associate at Katten Muchin Rosenman, LLP from 2011 to 2013, 

focusing on landlord tenant rights with an expertise in defense of ADA litigation. Id. In 2013, Ms. 

Tsao started her own practice, Ascension Law Group, P.C., focusing on disability access rights. 

Id. ¶ 8. She has been lead counsel on a number of ADA and Unruh cases. Id.
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Ms. Tsao’s current billing rate is $375 per hour. Tsao Decl. ¶ 9. She represents that, based 

on a 2013-2014 survey of consumer protection attorneys, the average rate for an attorney with 6-

10 years of experience in California is $394.00 per hour. Id. She also submits several decisions 

from the Central District of California and the Alameda County Superior Court finding that her 

hourly rate of $375 is reasonable. See Tsao Reply Decl. Exhs. B, C, D, E, F, ECF 72. 

Defendants do not dispute that rates in the Central District of California are comparable to 

rates in the Northern District of California. See Opp. at 5 (“Notably, the Central District of 

California . . . generally has rates comparable to the Northern District.”), ECF 64. Nor do they 

dispute that prior decisions setting a rate for Ms. Tsao are particularly relevant to determining an 

appropriate rate here. See Opp. at 5 (Evidence of a reasonable rate can include “rate 

determinations in other cases, particularly those setting a rate for the plaintiff’s attorney.”). 

Defendants nonetheless ask the Court to reduce Ms. Tsao’s rate from $375.00 to $250.00 based on

a Central District decision awarding an hourly rate of $250.00 to fifth-year associates at a 

respected ADA firm. See Shedlin v. Balagot, No. 2:14-CV-03664-CAS(JEMx), 2016 WL 

2732133, at *3 (C.D. Cal. May 9, 2016). Defendants’ argument is unpersuasive, as Ms. Tsao is 

not a fifth-year associate but rather an attorney with more than nine years of experience who 

founded her own ADA practice. 

Accordingly, the Court finds that Ms. Tsao’s hourly rate of $375 is reasonable in this case. 

That rate is consistent with, and actually lower than, rates granted to disability access attorneys in 

other ADA cases in this district. See, e.g., Californians for Disability Rights v. California Dep’t of 

Transp., No. C 06-05125 SBA MEJ, 2010 WL 8746910, (N.D. Cal. Dec. 13, 2010) (finding $560 

and $535 to be reasonable hourly rates for attorneys at Disability Rights Advocates with 9 years 

and 7 years of experience, respectively).

C. Hours Expended

Che presented Ms. Tsao’s billing statement with his motion for attorneys’ fees and then 

presented a more detailed, revised billing statement with his reply brief in response to Defendants’ 

assertion that the original billing statement reflected “block billing.” See Tsao Decl. Exh. A, ECF 

59-1; Tsao Reply Decl. Exh. A, ECF 72-1. The Court granted Defendants leave to file a sur-reply 
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to address any new material in Che’s reply materials. The Court therefore focuses on the revised

billing statement (ECF 72-1) submitted with the reply in evaluating the reasonableness of the 

hours expended by Ms. Tsao.

Unfortunately, Ms. Tsao’s revised billing statement is organized chronologically rather 

than by task. The Court has organized the billings into the following categories to aid it in 

evaluating whether the time spent on each task or set of tasks was reasonable.

Tasks Hours

Requested

Fees

Requested

1 Pre-Compl. tasks and filing Compl. 3.1 1,162.50

2 Corresp./Conference with Client 2.5 937.50

3 Corresp./Conference with Defendants/Def Counsel 12.6 4,725.00

4 Stipulations/Administrative Motions 28.6 10,725.00

5 Motion to Dismiss 17.3 6,487.50

6 Site Inspection/Discovery 4.6 1,725.00

7 Mediation/Settlement 21 7,875.00

8 Fee Motion 29.1 10,912.50

9 Miscellaneous 3.5 1,312.50

TOTAL 122.3 45,862.50

As an initial matter, Defendants ask the Court to limit fees to hours billed through March 

7, 2017, when Defendants made a settlement offer of $5,000 and full remediation. If the Court 

declines to do so, Defendants ask the Court to reduce the requested fees substantially to reflect 

“block billing” and billing for clerical tasks. While acknowledging that Ms. Tsao’s revised billing 

statement cures the block billing issue, Defendants challenge the accuracy of the revised billing 

statement, speculating that Ms. Tsao could not have accurately determined how much time was 

spent on each task more than a year after the fact. Even assuming the accuracy of the revised 

billing statement, Defendants challenge the number of hours Ms. Tsao spent on drafting the 

complaint (category 1), on administrative motion practice and related meet and confer with 

opposing counsel (categories 3 and 4), and on the current motion for attorneys’ fees (category 8). 

Finally, although Defendants do not directly attack the fees incurred in opposing the motion to 

dismiss (category 5), they argue that Ms. Tsao generally overbilled her time. 

1. Settlement Offer

Defendants assert that Che acted unreasonably in refusing a March 7, 2017 settlement 
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offer, which according to Defendants “offered $5,000 and full ADA remediation.” Opp. at 6, ECF 

64. Settlement negotiations may be considered by the Court in determining a reasonable fees 

award. Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011). In response, Che argues that he 

ultimately settled for $8,145.85, and therefore that it was not unreasonable for him to reject the 

$5,000 offer. Substantive Reply at 4, ECF 71. Defendants contend that they would have gone as 

high as $6,500 to settle the case, but that Che unreasonably failed to pursue further negotiations

after rejecting the $5,000 offer. Ms. Tsao states in her declaration that the $5,000 offer was made 

on March 14, 2017, not March 7, 2017, and that in any event Defendants stated that the offer of 

$5,000 was “100% non-negotiable.” Tsao Reply Decl. ¶ 10, ECF 72. On this record, the Court

concludes that Defendants have failed to show that Che’s rejection of the $5,000 settlement offer 

was improper or otherwise warrants a reduction of attorneys’ fees. The Court finds unpersuasive 

Defendants’ argument that Che should have known, despite Defendants’ characterization of the 

$5,000 as non-negotiable, that Defendants actually would have gone higher. See Opp. at 9, ECF 

64.

2. Block Billing and Clerical Tasks

In their opposition, Defendants ask the Court to reduce the requested fees substantially to 

reflect “block billing” and billing for clerical tasks. Although Ms. Tsao’s original billing 

statement, submitted with Che’s motion, contains several block billing entries, her revised billing 

statement cures that defect. Defendants acknowledge that the block billing issue is resolved by the 

revised billing statement, but they speculate that Ms. Tsao must have estimated the breakdown of 

the formerly block billed tasks. 

The Court accepts Ms. Tsao’s declaration statement, made under penalty of perjury, that 

the revised billing statement accurately reflects the actual time incurred in this action. See Tsao 

Reply Decl. ¶ 3, ECF 72. Defendants’ assertion that Ms. Tsao simply estimated the time spent on 

each task is purely speculative. 

With respect to Defendants’ challenge to billing for clerical tasks, Ms. Tsao billed 

approximately 3.5 hours out of the 122.3 hours claimed on tasks such as filing a change of address 

form. The Court categorized those tasks under “Miscellaneous” (category 9). Courts in this 
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district have declined to bill clerical tasks at attorney hourly rates, instead reducing the award for 

such tasks to paralegal rates. See, e.g., Kosloff v. Washington Square Assocs., LLC, No. C 06 

05060 SI, 2007 WL 2023497, at *4 (N.D. Cal. July 12, 2007). It is unclear from this record 

whether and to what extent the services of a paralegal were available to Ms. Tsao. Ms. Tsao states 

in her declaration that she founded Ascension Law Group, P.C. in 2013. The email for the law 

group, as reflected on the billing statements, appears to be a direct email for Ms. Tsao, 

Pamela.tsao@ascensionlawgroup.com. See Revised Billing Statement, ECF 72-1. Accordingly, it 

is unclear whether any other attorneys or staff work for Ascension Law Group. It may be that Ms. 

Tsao was the only person available to perform the clerical tasks. 

The Court agrees that clerical tasks should not be billed at attorney hourly rates. Although 

the Court declines to deduct all time spent on such tasks as requested by Defendants, it will reduce 

the hourly rate to $125 to reflect a reasonable rate for paralegal time. Thus, the requested 3.5 

hours will be compensated in the total amount of $437.50.

3. Complaint

Defendants complain that the 3.1 hours spent by Ms. Tsao on conferring with Che and 

drafting a “cookie-cutter” complaint was excessive. The complaint is extremely basic. The Court 

therefore agrees that 3.1 hours is excessive and reduces the time spent in this category by 1 hour.

4. Administrative Motions and Related Meet and Confer

Defendants argue that Ms. Tsao protracted the litigation by needlessly bringing and 

opposing administrative motions and engaging in lengthy and unnecessary meet and confer with 

defense counsel. Che counters that Defendants are impermissibly seeking to exclude hours spent 

on motions Che lost. 

“[A] plaintiff who is unsuccessful at a stage of litigation that was a necessary step to her 

ultimate victory is entitled to attorney’s fees even for the unsuccessful stage.” Cabrales v. Cty. of 

Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991). As the Ninth Circuit has put it, “[l]awsuits 

usually involve many reasonably disputed issues and a lawyer who takes on only those battles he 

is certain of winning is probably not serving his client vigorously enough; losing is part of 

winning.” Id. Defendants contend that the Court can exclude hours spent on unreasonable 
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litigation conduct, citing Signature Networks, Inc. v. Estefan, No. C 03-4796 SBA, 2005 WL 

1249522, at *5 (N.D. Cal. May 25, 2005). However, Defendants have not demonstrated that 

Che’s conduct in opposing Defendants’ administrative motions, and filing his own, was 

unreasonable.

While the Court cannot conclude on this record that Che’s filings and related meet and 

confer efforts were unreasonable, the Court does agree that Ms. Tsao spent an excessive amount of 

time on stipulations and administrative motions. For example, on May 9, 2017 and May 10, 2017, 

Ms. Tsao spent more than 8 hours reviewing and opposing Defendant Imwalle’s Motion for 

Administrative Relief for Extension Re: General Order 56 (ECF 28). The motion, which was 4 

pages long, requested a stay of the site inspection and discovery pending a ruling on Defendant 

Imwalle’s pending motion to dismiss for lack of subject matter jurisdiction. Che’s opposition 

brief was 7 pages long. The issues raised by the administrative motion were not complicated and, 

in fact, were routine and ordinary. Under these circumstances, and given Ms. Tsao’s expertise in 

disability access litigation, the Court would have expected it to take Ms. Tsao only a few hours to 

draft and file a response. See Delson v. CYCT Mgmt. Grp., Inc., No. C 11-03781 MEJ, 2013 WL 

1819265, at *8 (N.D. Cal. Apr. 30, 2013) (“One of the trade offs of being an expert in a specific 

field of law is the expectation that tasks will be completed with greater efficiency because the 

knowledge base and resources have already been well-established.”). The same is true for the 

other administrative motions litigated, and stipulations filed, in this case. Accordingly, the Court 

reduces the 28.6 hours related to stipulations and administrative motions by 10 hours.

5. Motion for Attorneys’ Fees and Costs

Defendants contend that Ms. Tsao spent excessive time on the present motion for 

attorneys’ fees and costs. The Court agrees. Ms. Tsao claims 29.1 hours in connection with the 

motion. The Court finds those hours to be excessive given that the moving brief was 13 pages in 

length, the original reply brief – essentially a notice of non-opposition – was 3 pages, and the 

later-filed substantive reply brief was 13 pages. The motion does not present any novel or 

complex issues, and oral argument was vacated. Ms. Tsao spent more than 6 of the claimed hours 

opposing Defendants’ motion to change time to permit them to file a late opposition following the 
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illness of defense counsel. No compensation is allowed for opposing Defendants’ request to 

change time. Ordinary civility would dictate a stipulation. Given this record, the Court reduces 

the 29.1 hours claimed in this category by 15 hours. 

6. Motion to Dismiss

As noted above, Defendants do not directly challenge the hours claimed for Ms. Tsao’s 

litigation of Defendant Imwalle’s motion to dismiss. However, Defendants do argue that Ms. 

Tsao’s billings are generally excessive, and with respect to this category, the Court agrees. The 

motion to dismiss totaled 6 pages, with an additional 2 pages devoted to a supporting declaration. 

Ms. Tsao’s opposition brief was 6 pages and was accompanied by a 3 page declaration. The 

motion was taken under submission without oral argument. Under these circumstances, the Court 

concludes that the 17.3 hours claimed in connection with the motion are excessive. The Court 

reduces the hours claimed in this category by 8 hours.

D. Attorneys’ Fees Award

In light of the above discussion, the Court finds that Che is entitled to reasonable 

attorneys’ fees in the amount of $32,237.50, calculated as follows:

Tasks Hours 

Requested

Hours 

Awarded

Fees 

Awarded

1 Pre-Compl. tasks and filing Compl. 3.1 2.1 787.50

2 Corresp./Conf. with Client 2.5 2.5 937.50

3 Corresp./Conf. with Defs./Def Counsel 12.6 12.6 4,725.00

4 Stipulations/Administrative Motions 28.6 18.6 6,975.00

5 Motion to Dismiss 17.3 9.3 3,487.50

6 Site Inspection/Discovery 4.6 4.6 1,725.00

7 Mediation/Settlement 21 21 7,875.00

8 Fee Motion 29.1 14.1 5,287.50

9 Miscellaneous 3.5 3.5 at $125/hr 437.50

TOTAL 122.3 88.3 32,237.50

III. ORDER

(1) Che’s motion for attorneys’ fees and costs is GRANTED IN PART AND DENIED 

IN PART. Che is AWARDED $32,237.50 in reasonable attorneys’ fees, as well as 

reasonable costs as determined by the Clerk of the Court pursuant to Civil Local 

Rule 54; and
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(2) The parties shall file a stipulated judgment or stipulated dismissal on or before 

August 31, 2018.

Dated: August 16, 2018 ______________________________________

BETH LABSON FREEMAN

United States District Judge