Northern California Record

Sunday, December 15, 2019

Judge reduces legal fees award by more than $60,000 in ADA complaint


By Scott Holland | May 14, 2019

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SAN FRANCISCO – A federal judge said a man with muscular dystrophy is entitled to recover legal fees incurred while pursuing a claim for violations of the Americans with Disabilities Act, though not at the amount originally requested.

On May 1, Judge Susan Illston of the U.S. District Court for the Northern District of California awarded $7,867 in costs and $60,265.42 in fees to plaintiff Albert Dytch. Dytch had originally requested nearly $130,000 in fees, costs and litigation expenses.

Dytch sued Flacos restaurant and its landlord, Maxaco LLC, following an October 2016 visit in which he said he allegedly encountered several access barriers. He settled with Flacos in July 2017 and with Maxaco in December 2018. Dytch and Maxaco couldn’t agree on legal fees, prompting Dytch’s motion filed March 11.

Illston reviewed submissions and vacated an April 26 hearing before issuing an opinion May 1. She said the ADA authorizes a prevailing party to receive reasonable attorneys’ fees and noted Dytch requested $129,233 based on the work of two attorneys and three paralegals, each earning a different hourly rate for 376 hours of labor, as well as more than $7,800 in court costs.

Maxaco said the request should be reduced by more than $35,000 because parts of Dytch’s filing “are improper, duplicative or vague,” according to Illston. Dytch agreed with some of those reductions, such as three hours paralegal David Guthrie spent on clerical tasks.

Illston also agreed to reduce $3,622 in legal fees associated with the Flacos settlement, agreeing with Maxaco that Dytch’s settlement with the restaurant stipulated each party would bear its own legal expenses.

Other areas saw just slight reductions, such as Illston striking an hour one of Dytch’s attorneys spent waiting for a July 2018 deposition to begin and knocking only 20 percent off a request related to a failed motion for summary judgment, which Maxaco argued was filed simply to inflate fees.

Illston also fully upheld some of Dytch’s requests, such as two hours attorney Tanya Moore spent preparing the motion to secure fees and 11 hours paralegal Marejka Sacks spent on pretrial and settlement conferences.

Maxaco objected to $5,255 in block-billed entries, saying they lacked specificity and should be removed, or at least be reduced 5 percent. Illston pointed to a 2007 9th Circuit Court of Appeals opinion in Welch v. Metropolitan Life Insurance Co. authorizing reduction of such fees and a 2016 California Bar Committee on Mandatory Fee Arbitration advisory estimating block billing can increase time by 10 to 30 percent, then agreed to reduce those entries by 20 percent for a total cut of $1,045.

Finally, Illston considered a possible lodestar adjustment based on the novelty of the case, the nature and length of Dytch’s relationship with his legal team, whether the case cost the attorneys other opportunities, the case’s desirability and the total amount involved.

Maxaco argued the matter was a “straightforward ADA access case” akin to the 155 Dytch’s counsel already litigated in the same district, multiple times with Dytch as the plaintiff, leading to the conclusion some legal tasks could be completed by drawing on prior experience. Illston found no evidence the lawyers were precluded from bringing other cases before a court while representing Dytch and said the desirability of the case weighed against Dytch in calculating the lodestar.

Maxaco asked the fees to be reduced to $16,797, but Illston said that was too severe. Still, she cut the lodestar by half, leaving Dytch’s lawyers with $60,265 and the $7,860 in costs.

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