Rutherford v. Evans Hotels, LLC

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JAMES RUTHERFORD and THE Case No.: 18-CV-435 JLS (MSB)

ASSOCIATION 4 EQUAL ACCESS,

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ORDER GRANTING IN PART

Plaintiffs,

13 DEFENDANT’S MOTION FOR

v. ATTORNEYS’ FEES

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EVANS HOTELS, LLC, and DOES

15 (ECF No. 103)

1 to 50,

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Defendants.

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18 Presently before the Court is Defendant Evans Hotels, LLC’s (“Defendant”) Motion

19 for Attorneys’ Fees or in the Alternative for Sanctions (“Mot.,” ECF No. 103). Plaintiffs

20 James Rutherford and the Association 4 Equal Access (the “Association” or “A4EA”)

21 (collectively, “Plaintiffs”) filed a Response in opposition to the Motion (“Resp.,” ECF No.

22 104), and Defendant filed a Reply in support of the Motion (“Reply,” ECF No. 106). The

23 Court vacated the hearing and took the matter under submission without oral argument

24 pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 105. Having carefully reviewed the

25 Parties’ arguments, the record, and the relevant law, the Court GRANTS IN PART

26 Defendant’s Motion, as set forth below.

27 / / /

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1 BACKGROUND

2 The Parties are intimately familiar with the procedural and factual background of

3 this case, and accordingly the Court incorporates by reference the detailed background set

4 forth in its September 3, 2020 Order. See ECF No. 102 (the “Order”) at 2–19. To

5 summarize the relevant background briefly, however:

6 On January 18, 2018, Plaintiffs filed a complaint against Defendant for violations of

7 the California Unruh Act and Title III of the Americans with Disabilities Act (the “ADA”).

8 See generally ECF No. 1-2 (“Compl.”). Plaintiffs filed their complaint in the Superior

9 Court of California, County of San Diego, claiming that Defendant’s hotel reservation

10 system denied Plaintiffs and those similarly situated full and equal access. See generally

11 Compl. On February 26, 2018, the case was removed to this Court. See generally ECF

12 No. 1.

13 Following the filing of the operative Second Amended Complaint (“SAC,” ECF No.

14 21) and Plaintiffs’ Motion to Certify Class (ECF No. 45), on April 29, 2019, this Court

15 ordered Plaintiffs to show cause why this action should not be dismissed for lack of Article

16 III standing and subject-matter jurisdiction, noting that “it would appear that Plaintiffs

17 cannot establish an intent to return or deterrence and therefore lack standing to assert their

18 ADA claims.” ECF No. 59 (“OSC”) at 3:4–5. The parties submitted responses to the OSC,

19 see ECF Nos. 62, 63, and, in order to resolve issues of credibility and disputed material

20 facts, the Court scheduled an evidentiary hearing for July 1, 2019, see ECF Nos. 66, 74,

21 78.

22 After the evidentiary hearing and a thorough review of the record in the case,

23 including significant briefing addressing the standing and subject-matter jurisdiction

24 issues, the Court issued an Order determining that Plaintiffs failed to establish standing

25 through either an injury-in-fact or intent-to-return theory. See generally Order. The Order

26 relied in significant part on determinations of Plaintiffs’ credibility. See id. Thus, the Court

27 dismissed Plaintiffs’ ADA claim for lack of standing and remanded Plaintiffs’ Unruh Act

28 claim to the Superior Court of California. See id.

1 Subsequently, Defendant filed the instant Motion, which Plaintiffs oppose.

2 LEGAL STANDARDS

3 I. Attorneys’ Fees Under 42 U.S.C. § 12205

4 The ADA provides that “the court in its discretion, may allow the prevailing

5 party . . . a reasonable attorney’s fee, including litigation expenses and costs.” 42 U.S.C.

6 § 12205. When the prevailing party is the defendant, attorneys’ fees should be awarded

7 only if “the plaintiff’s action was frivolous, unreasonable, or without foundation.” Brown

8 v. Lucky Stores, 246, F.3d 1182, 1190 (9th Cir. 2001). The purpose of awarding fees to a

9 prevailing defendant is “‘to deter the bringing of lawsuits without foundation.’” CRST Van

10 Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1652 (2016) (quoting Christiansburg Garment

11 Co. v. E.E.O.C., 434 U.S. 412, 420 (1978)). “The Court, therefore, has interpreted the

12 statute to allow prevailing defendants to recover when plaintiff’s “claim was frivolous,

13 unreasonable, or groundless.” Id. (quoting Christiansburg, 434 U.S. at 421).

14 II. Sanctions Under 28 U.S.C. § 1927

15 Section 1927 of title 28 of the United States Code provides that “[a]ny attorney . . .

16 who so multiplies the proceedings in any case unreasonably and vexatiously may be

17 required by the court to satisfy personally the excess costs, expenses, and attorney’s fees

18 reasonably incurred for such conduct.” Under this section, the sanctions only apply to

19 “subsequent filing and tactics which multiply the proceedings.” Moore v. Keegan Mgmt.

20 Co., 78 F.3d 431, 435 (9th Cir. 1996). To award sanctions under section 1927, the court

21 must make a finding of recklessness or bad faith. See Fink v. Gomez, 239 F.3d 989, 993

22 (9th Cir. 2001).

23 III. The Court’s Inherent Power to Sanction

24 A federal court has the inherent power “to levy sanctions, including attorneys’ fees,

25 for willful disobedience of a court order . . . or when the losing party has acted in bad faith,

26 vexatiously, wantonly, or for oppressive reasons.” Fink, 239 F.3d at 992 (citing Roadway

27 Express, Inc. v. Piper, 447 U.S. 752, 766 (1980)); see also Chambers v. NASCO, 501 U.S.

28 32, 44–45 (1991) (stating that, as an “appropriate sanction for conduct that abuses the

1 judicial process,” “an assessment of attorney’s fees is undoubtedly within the court’s

2 inherent power.”).

3 ANALYSIS

4 Defendant requests that the Court award it its attorneys’ fees and costs as a prevailing

5 party under 42 U.S.C. § 12205 or, in the alternative, as a sanction pursuant to 28 U.S.C.

6 § 1927 and/or this Court’s inherent powers. See ECF No. 103-1 (“Mot. Mem.”) at 1:2–7.

7 I. Defendant’s Entitlement to Attorneys’ Fees

8 Defendant seeks attorneys’ fees in the amount of $205,067.50 and costs totaling

9 $12,615.73 as the “prevailing party” under the ADA. Mot. Mem. at 18:2–4. As previously

10 noted, when the prevailing party is the defendant, attorneys’ fees should be awarded only

11 if “the plaintiff’s action was frivolous, unreasonable, or without foundation.” Brown, 246

12 F.3d at 1190. Accordingly, to determine whether Defendant is entitled to an award of

13 attorneys’ fees under the ADA, the court must first determine whether Defendant is a

14 prevailing party and second whether Plaintiffs’ lawsuit was frivolous, unreasonable, or

15 groundless.

16 A. Defendant’s Prevailing Party Status

17 In CRST Van Expedited Incorporated, the United States Supreme Court held that “a

18 favorable ruling on the merits is not a necessary predicate to find that a defendant has

19 prevailed” under a statutory attorneys’ fees provision. 136 S. Ct. at 1646. In applying

20 CRST Van Expedited Incorporated, the Ninth Circuit has held that a defendant may be

21 considered a prevailing party even if the case is dismissed for lack of subject-matter

22 jurisdiction. Amphastar Pharmaceuticals Inc. v. Aventis Pharma SA, 856 F.3d 696, 709

23 (9th Cir. 2017) (holding that dismissing a case for lack of subject-matter jurisdiction is “a

24 significant victory and permanently changes the legal relationship of the parties”).

25 Plaintiffs argue first that Defendant is not a prevailing party because the dismissal

26 for lack of standing “has not materially altered the legal relationship between the parties.”

27 Resp. at 12, 24–25. Additionally, Plaintiffs argue that Defendant is not a prevailing party

28 because the dismissal was “not an adjudication on the merits and it was not dispositive of

1 Plaintiffs’ claims,” given that the Unruh Act claim was remanded to the California Superior

2 Court. Id. at 13, 24–25. However, as noted above, the Ninth Circuit has rejected the

3 argument that a defendant is not the prevailing party merely because a case was dismissed

4 for jurisdictional reasons. Amphastar Pharmaceuticals Inc., 856 F.3d at 709. Here, the

5 Court dismissed Plaintiffs’ ADA claim for lack of subject-matter jurisdiction. Order at

6 51:22–23. Thus, the fact that the Unruh Act claim was remanded to the California Superior

7 Court is irrelevant for purposes of deciding whether Defendant is the prevailing party, as

8 Defendant brings its request for attorneys’ fees based solely on the dismissed ADA claim.

9 Thus, the dismissal of the ADA claim effectively changed the legal relationship of the

10 parties, and accordingly, Defendant is a prevailing party.

11 Plaintiffs further argue that the ADA “contains no independent grant of jurisdiction

12 to entertain a fee motion after this Court determined it does not have jurisdiction over the

13 action.” Resp. at 13. Plaintiffs’ argument, however, is without merit. The Ninth Circuit

14 held in Amphastar Pharmaceuticals Incorporated that “[t]o rule that a district court cannot

15 award attorneys’ fees even when it determines that a [plaintiff] brought a frivolous suit just

16 because the jurisdictional bar applies would undermine one of the key purposes . . . to

17 discourage ‘parasitic’ suits.” 856 F.3d at 710. The Ninth Circuit went on to state: “It is

18 consistent with the statutory scheme that [the defendant] can receive attorneys’ fees from

19 [the plaintiff] if its claim was frivolous, given the immense amount of resources and time

20 this action has cost everyone.” Id. The Ninth Circuit’s reasoning is reflective of the goals

21 and structure of the ADA; therefore, Plaintiffs’ claim that this Court lacks jurisdiction to

22 “entertain a fee motion” is unfounded. Resp. at 13; see Strojnik v. 1017 Coronado, Inc.,

23 Case No. 19-cv-02210-BAS-MSB, 2021 WL 120899 (S.D. Cal. Jan. 13, 2021) (awarding

24 attorneys’ fees to a prevailing defendant under an ADA claim after dismissing complaint

25 with prejudice); see also Vogel v. Sym Properties LLC, No. CV 15-09855-AB (ASX), 2017

26 WL 4586348, at *2 (C.D. Cal. Aug 4, 2017) (“Given the “trend of abusive ADA litigation,

27 special diligence and vigilant examination of the standing requirement are necessary and

28 appropriate to ensure the litigation serves the purposes for which the ADA was enacted.”).

1 B. Frivolous, Unreasonable, or Groundless Action

2 Next the Court must determine whether Plaintiffs’ lawsuit was “frivolous,

3 unreasonable or groundless.” CRST Van Expedited, Inc., 136 S. Ct. at 1646. “Frivolous

4 means ‘lacking in legal basis or legal merit.’” Strojnik, 2021 WL 120899, at *3 (quoting

5 Black’s Law Dictionary 738 (9th ed. 2009)). The court may find a claim frivolous if it

6 determines that the plaintiff had no reasonable or credible foundation to bring the suit or

7 was aware the court would not have jurisdiction. See Amphastar Pharm. Inc., 856 F.3d at

8 710 (finding the plaintiff’s claim to be frivolous because the plaintiff “had no reasonable

9 foundation on which to bring the suit” and “knew or should have known that the Court

10 would not have jurisdiction”). This standard is also met if “the plaintiff continued to litigate

11 after” his claim “clearly became” groundless or without foundation. Hughes v. Rowe, 449

12 U.S. 5, 15 (1980). While bad faith in bringing the lawsuit is not required, a showing of bad

13 faith could support a finding that the lawsuit was “frivolous, unreasonable or groundless.”

14 Advocates for Individuals with Disabilities, LLC v. MidFirst Bank, No. CV-16-01969-

15 PHX-NVW, 2018 WL 3545291, at *11 (D. Ariz. July 24, 2018).

16 This Court previously determined that Mr. Rutherford has failed to establish

17 standing under an injury-in-fact or intent-to-return theory. See generally Order. It is true

18 that dismissal for lack of standing does not by itself make a claim frivolous or unreasonable.

19 See Amphastar Pharms. Inc. v. Aventis Pharma SA, No. EDCV-09-0023 MJG, 2017 WL

20 10543563, at *8 (C.D. Cal. Nov. 20, 2017) (“The Court is mindful that it must ‘resist the

21 understandable temptation to engage in post hoc reasoning by concluding that, because

22 plaintiff did not ultimately prevail, his action must have been unreasonable or without

23 foundation.’”) (quoting Christiansburg, 434 U.S. at 421–22) (emphasis in original). But

24 the Court may also take into consideration facts as they became known to the court, the

25 litigation history of the plaintiff, and litigation tactics in the present matter to make a

26 determination as to whether the plaintiff had a reasonable foundation to bring the suit or

27 has in some other way acted unreasonably or in bad faith. Id. (“The Court does not find

28 Amphastar’s claim frivolous because it did not prevail, but rather because, as the facts

1 became known to the Court, it became clear that Amphastar had no reasonable foundation

2 on which to bring the suit.”); see also Strojnik, 2021 WL 120899, at *4 (considering the

3 plaintiff’s extensive litigation history and use of misrepresentations and other tactics in

4 previous settlements and the current litigation in determining whether to award attorneys’

5 fees to the defendant). Thus, in its determination, the Court will consider Plaintiffs’

6 litigation history, litigation tactics, use of the Association, and behavior throughout this

7 case to determine whether this action was frivolous or unreasonable.

8 Since 2013 and as of the date of the Order, Mr. Rutherford had filed 313 lawsuits in

9 this District and the Central District of California. See Order at 12:21. And, by the Court’s

10 count, including this case, Mr. Rutherford has filed at least twenty-four cases against hotels

11 in this District alone as of August 1, 2020.1 While many of Mr. Rutherford’s lawsuits have

12 been settled outside of court, he also has had suits dismissed for lack of standing in the

13 past, before issuance of this Court’s Order. See, e.g., Rutherford v. JC Resorts, LLC, No.

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16 1 See Rutherford v. Mandira Invs., LLC, No. 20-CV-826 AJB (BGS) (S.D. Cal. filed May 1, 2020);

Rutherford v. Mehul Hospitality, LLC, No. 20-CV-348 H (JLB) (S.D. Cal. filed Feb. 25, 2020); Rutherford

17 v. Chang, No. 19-CV-2350 JAH (NLS) (S.D. Cal. filed Dec. 9, 2019); Rutherford v. Korol Capital LLC,

No. 19-CV-1862 BAS (KSC) (S.D. Cal. filed Sept. 26, 2019); Rutherford v. 1440 Mission Ave., LLC, No.

18 19-CV-1861 WQH (MDD) (S.D. Cal. filed Sept. 26, 2019); Rutherford v. Palm Tree Hospitality Corp.,

No. 19-CV-1569 JLS (WVG) (S.D. Cal. filed Aug. 20, 2019); Rutherford v. La Jolla Riviera Apartment

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House LLC, No. 19-CV-1349 JM (MDD) (S.D. Cal. removed July 19, 2019); Rutherford v. JC Resorts,

20 LLC, No. 19-CV-665 BEN (NLS) (S.D. Cal. removed Apr. 9, 2019); Rutherford v. Gurudev Enters. LLC,

No. 19-CV-251 JLS (NLS) (S.D. Cal. filed Feb. 4, 2019); Rutherford v. Rodeway Inn, No. 18-CV-2276

21 AJB (MDD) (S.D. Cal. filed Sept. 28, 2018); Rutherford v. Day’s Inn El Centro, No. 18-CV-2275 GPC

(AGS) (S.D. Cal. filed Sept. 28, 2018); Rutherford v. Motel 6, No. 18-CV-2210 GPC (WVG) (S.D. Cal.

22 filed Sept. 24, 2018); Rutherford v. Econo Lodge Inn & Suites, No. 18-CV-2026 GPC (LL) (S.D. Cal.

filed Aug. 29, 2018); Rutherford v. Pacifica Diamond LLC, No. 18-CV-1801 CAB (JLB) (S.D. Cal.

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removed Aug. 2, 2018); Rutherford v. Pacifica S. Inn LLC, No. 18-CV-1798 JLS (BLM) (S.D. Cal.

24 removed Aug. 2, 2018); Rutherford v. Comfort Inn & Suites El Centro I-8, No. 18-CV-1768 WQH (KSC)

(S.D. Cal. filed July 31, 2018); Rutherford v. Ams. Best Value Inn, No. 18-CV-1734 CAB (BGS) (S.D.

25 Cal. filed July 27, 2018); Rutherford v. Best W., No. 18-CV-1733 KSC (S.D. Cal. filed July 27, 2018);

Rutherford v. Holiday Inn, No. 18-CV-1730 LAB (JMA) (S.D. Cal. filed July 27, 2018); Rutherford v.

26 Royal Motel, No. 18-CV-1501 LAB (RBB) (S.D. Cal. filed June 29, 2018); Rutherford v. Econolodge,

No. 18-CV-1471 LAB (LL) (S.D. Cal. filed June 27, 2018); Rutherford v. Evans Hotels, LLC, No. 18-

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CV-435 JLS (MSB) (S.D. Cal. removed Feb. 26, 2018); Peterson v. Watkins, No. 17-CV-1078 BAS (JLB)

28 (S.D. Cal. filed May 24, 2017); and Rutherford v. La Quinta Holdings, No. 17-CV-819 DMS (JLB) (S.D.

1 19-CV-00665-BEN-NLS, 2020 WL 4227558 (S.D. Cal. July 23, 2020) (granting defendant

2 summary judgment as to Mr. Rutherford’s ADA claim due to lack of standing, declining

3 to exercise supplemental jurisdiction over Unruh Act claim, and remanding to state court),

4 appeal dismissed, No. 20-55878, 2020 WL 8618016 (9th Cir. Nov. 25, 2020); Rutherford

5 v. Los Charros, No. 19-CV-379 LAB (WVG) (S.D. Cal. filed Feb. 26, 2019), ECF No. 7

6 (April 5, 2019 order to show cause why case should not be dismissed for lack of jurisdiction

7 noting: “Plaintiff James Rutherford has filed numerous complaints in this District, and this

8 Court has pointed out to him the necessity of pleading facts to establish standing.”);

9 Rutherford v. Econolodge, No. 18-CV-1471 LAB (LL) (S.D. Cal. filed June 27, 2018),

10 ECF No. 14 (February 27, 2019 order granting motion to dismiss ADA claim for lack of

11 jurisdiction).

12 Defendant’s Motion also cites multiple cases filed by Mr. Rutherford in the Central

13 District of California that similarly were rejected for lack of standing. See Mot. Mem. at

14 15–16.2 Judge Otis D. Wright summarized Mr. Rutherford’s litigation history as follows:

15 Rutherford has filed more than 10 cases within the last twelve

months, and is considered a high-frequency litigant under

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California law. . . . Rutherford’s cases include nearly identical

17 complaints and subsequent filings, with billing records that

reflect the use of templates. Notably, Rutherford’s attorneys

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have filed thousands of ADA cases in this district using “carbon-

19 copy complaints and ‘entirely boilerplate’ litigation.”

20 Rutherford v. JJ’s Mkt. & Liquor, Case No. 5:18-cv-02656-ODW (SHKx), 2020 WL

21 883220, at *6 (C.D. Cal. Feb. 21, 2020). Mr. Rutherford has a history of failing to allege

22 specifically what injury he has suffered and what barriers affect that disability—shortfalls

23 that have been pointed out to him on many occasions—yet Mr. Rutherford continued to

24 file complaints lacking sufficient substance to establish standing. This history shows that

25 Mr. Rutherford is aware of the standing requirements for ADA claims and repeatedly has

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2 James Rutherford v. JJ’s Mkt. & Liquor, 2020 U.S. Dist. LEXIS 31164 (C.D. Cal. Feb. 21, 2020); James

28 Rutherford v. Boman, 2020 U.S. Dist. LEXIS 129044 (C.D. Cal. May 6, 2020); Rutherford v. Dinh, 2020

1 failed to satisfy those requirements in the past. This conduct weighs in favor of finding the

2 present claim both frivolous and unreasonable. See Strojnik, 2021 WL 120899, at *4 (“The

3 fact remains that Mr. Strojnik files lawsuits with broad, non-specific allegations that he

4 knows will be dismissed for lack of standing.”).

5 The Court is also troubled by Mr. Rutherford’s unflinching continued pursuit of what

6 may have been a moot controversy. See Order at 37:22–23; see also ECF No. 49 at 9–10.

7 After Plaintiffs filed their initial complaint, Defendant notified Plaintiffs that, as of

8 February 27, 2018, “Defendant had taken steps necessary to ensure that Defendant’s online

9 reservation services . . . allowed persons with mobility impairments to independently

10 identify accessible feature[s] of Defendant’s hotels and independently reserve accessible

11 rooms.” Mot. Mem. at 3:8–12 (citing Declaration of Nadia P. Bermudez (“Bermudez

12 Decl.,” ECF No. 103-3) ¶¶ 6–8; id. Exs. B and C). Thus, the lawsuit accomplished its

13 remedial goals in February 2018, shortly after it was filed in January of that year. In its

14 Order, this Court noted that, “[r]ather than close the book on a job well done and move on,

15 Mr. Rutherford has required the Parties and this Court to expend valuable resources so that

16 he may ‘extort [his] cash settlement.’” Order at 36:8–9. Mr. Rutherford’s profit motive is

17 further exemplified by his numerous filings and his “tacking on state law claims for Unruh

18 damages to his federal ADA complaints.” Order at 37:20–23 (citing Molski v. Mandarin

19 Touch Rest., 385 F. Supp. 2d 1042 (C.D. Cal. 2005)). This is the exact type of behavior

20 that courts juggling overburdened dockets seek to curtail.

21 Of significant concern to the Court is Mr. Rutherford’s use of the Association as an

22 additional plaintiff in a number of his suits, including this one.3 After reviewing the lack

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25 3 See, e.g., Rutherford, A4EA v. Pac. W. Bank, 2019 U.S. Dist. LEXIS 28752 (S.D. Cal. Feb. 22, 2019);

Rutherford, A4EA v. Carl’s Jr., 2018 U.S. Dist. LEXIS 213050 (C.D. Cal. Dec. 18, 2018); Rutherford,

26 A4EA v. Bhakta, 2017 U.S. Dist. LEXIS 190076 (C.D. Cal. Nov. 15, 2017); Rutherford, A4EA v. Cho-

Park LLC, 2017 U.S. Dist. LEXIS 206083 (C.D. Cal. Dec. 14, 2017); Rutherford, A4EA v. Hazit Mkt.,

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2019 U.S. Dist. LEXIS 42880 (C.D. Cal. Mar. 15, 2019); Rutherford, A4EA v. Coast to Coast Commer.,

28 LLC, 2017 U.S. Dist. LEXIS 189267 (C.D. Cal. Nov. 15, 2017); Rutherford, A4EA v. Elite Hospitality,

1 of credibility in Mr. Rutherford’s testimony about the Association, including the lack of

2 evidence detailing membership, regular meetings, educational programs, polices or

3 procedures, or bylaws, the Court concluded in its Order that the “Association is not a

4 legitimate organization, but rather serves as the alter ego of Mr. Rutherford and/or Ms.

5 Filardi.” Order at 50:10-11. Mr. Rutherford has not only commingled settlement funds

6 with the Association’s, but also has used the Association to further his own interests. Id.

7 Such tactics of “using misrepresentations to encourage small business defendants into

8 quick settlements” weigh strongly in favor of finding Plaintiffs’ behavior and this action

9 unreasonable. Strojnik, 2021 WL 120899, at *4.

10 Also relevant is the fact that Plaintiffs’ credibility has been called into question on

11 multiple occasions. For example, in the Order, the Court determined that it could not take

12 Mr. Rutherford at his word given his “litigation history, coupled with a contradictory

13 factual record,” and stated that, “while the Court acknowledges Mr. [Rutherford’s] right to

14 file ADA lawsuits to remedy denial of access violations, the reality is he has sued so many

15 different establishments that it is impossible to believe he routinely visits the same

16 establishments on each of his visits to San Diego.” Order at 35:23–36:4 (citing Harris v.

17 Stonecrest Care Auto Ctr., LLC, 472 F. Supp. 2d 1208, 1213 (S.D. Cal. 2007) (collecting

18 cases)). With regard to the many ADA cases Mr. Rutherford has brought, he “does not

19 know how many are pending or whom he has sued,” and he “has also entered into an

20 unknown number of settlements with entities he has not formally filed an ADA lawsuit

21 against.” Id. at 12:25, 15:10–11. The Order went on to list “other factual considerations

22 in the record that call into question Plaintiff’s credibility,” including “factual

23 contradictions” in Mr. Rutherford’s testimony, Mr. Rutherford’s tendency to “exaggerate

24 or understate his testimony to his advantage,” the inclusion of “simply implausible”

25 testimony, leading questions asked by Mr. Rutherford’s own counsel, and finally the

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28 2018 U.S. Dist. LEXIS 6906 (C.D. Cal. Jan. 16, 2018); and Rutherford, A4EA v. Popeyes La. Kitchen,

1 allegations from the Riverside County District Attorney’s Office. See generally Order at

2 38–39. These misrepresentations and credibility concerns add further credence to the

3 Court’s determination that the behavior of Plaintiffs in filing this suit was frivolous,

4 unreasonable, and groundless.

5 Plaintiffs contend the action was not frivolous, unreasonable, or groundless because

6 the testimony provided by Mr. Rutherford and Ms. Filardi “supports finding of injury-in-

7 fact under 36.302(e)(1).” Resp. at 14:11–12. Plaintiffs’ Response argues at length why

8 Mr. Rutherford “has standing” to challenge the illegal barriers, and how he has suffered an

9 injury-in-fact, suggesting the Court should have adopted a different standard for “standing

10 for the tester” from the Middle District of Florida. Id. at 21–23.

11 The Court already conducted an evidentiary hearing addressing the standing issue

12 and had the opportunity to listen to live testimony during the hearing; Plaintiffs also had

13 the opportunity to object to the evidence. Order at 19:18–19 (“[T]he Court ruled on a vast

14 majority of the Parties’ evidentiary objections at the hearing.”). Following the hearing and

15 on a full evidentiary record, the Court concluded that Mr. Rutherford lacked Article III

16 standing to pursue his claims for injunctive relief. Id. at 29. Given Plaintiffs’ failure to

17 file a timely motion for reconsideration and in light of the law of the case,4 there is nothing

18 for the Court to reconsider at this time regarding the issues of standing, Mr. Rutherford’s

19 intent to return, whether Mr. Rutherford suffered an injury-in-fact, Mr. Rutherford’s

20 knowledge of the alleged barriers, or Mr. Rutherford’s particular disability. Thus,

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4 Under the “law of the case” doctrine, “a court is generally precluded from reconsidering an issue that

24 has already been decided by the same court, or a higher court in the identical case.” Thomas v. Bible, 983

F.2d 152, 154 (9th Cir. 1993). The doctrine is not a limitation on a tribunal’s power, but rather a guide to

25 discretion. Arizona v. California, 460 U.S. 605, 618 (1983) (citations omitted). A court may depart from

the law of the case where: “(1) the first decision was clearly erroneous; (2) an intervening change in the

26 law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances

exist; or (5) a manifest injustice would otherwise result.” Thomas, 983 F.2d at 155 (citation omitted).

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Failure to abide by the doctrine of the law of the case absent one of the requisite conditions constitutes an

28 abuse of discretion. Id. Mr. Rutherford advances no conditions that would merit departure from the law

1 Plaintiffs’ additional factual arguments for standing do not meaningfully contribute to the

2 Court’s analysis of whether the litigation was “frivolous, unreasonable, or groundless.”

3 Based on Plaintiffs’ litigation history, including past dismissals for standing on

4 similar claims; Plaintiffs’ questionable conduct and credibility throughout the proceedings;

5 Plaintiffs’ litigation tactics, including the use of the Association to increase profits; and

6 Plaintiffs’ dogged pursuit of what may have been a moot claim, the Court finds that

7 Plaintiffs’ ADA claim was unreasonable and warrants an award of attorneys’ fees under

8 the ADA. Because the Court finds that attorneys’ fees are justified under the ADA, it does

9 not reach the issue of sanctions.

10 II. Amount of Attorneys’ Fees and Costs

11 Defendant seeks to recover attorneys’ fees in the amount of $205,067.50, as well as

12 $12,615.73 in costs incurred in connection with this lawsuit. Mot. Mem. at 12:10–11.

13 The Court calculates a reasonable fee award using a two-step process. See Fischer

14 v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). “First, the court must calculate the

15 ‘lodestar figure’ by taking the number of hours reasonably expended on the litigation and

16 multiplying it by a reasonable hourly rate.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424,

17 433 (1983)). “Second, the court must decide whether to enhance or reduce the lodestar

18 figure based on an evaluation of the Kerr [v. Screen Extras Guild, Inc., 526 F.2d 67 (9th

19 Cir. 1975), abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557

20 (1992),] factors that are not already subsumed in the initial lodestar calculation.” Fischer,

21 214 F.3d at 1119 (citing Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th

22 Cir. 2000); Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996)).

23 A. The Lodestar Figure

24 “‘The lodestar determination has emerged as the predominate element of the

25 analysis’ in determining a reasonable attorney’s fee award.” Morales, 96 F.3d at 363

26 (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987)). “The ‘lodestar’

27 is calculated by multiplying the number of hours the prevailing party reasonably expended

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1 on the litigation by a reasonable hourly rate.” Id. (citing McGrath v. Cty. of Nevada, 67

2 F.3d 248, 252 (9th Cir. 1995)).

3 1. Reasonableness of the Hourly Rates

4 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition

5 to the attorney’s own affidavits—that the requested rates are in line with those prevailing

6 in the community for similar services by lawyers of reasonably comparable skill,

7 experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir.

8 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). “[T]he relevant

9 community is the forum in which the district court sits.” Id. (citing Barjon v. Dalton, 132

10 F.2d 496, 500 (9th Cir. 1997)). “[A]ffidavits of the plaintiffs’ attorney[s] and other

11 attorneys regarding prevailing fees in the community, and rate determinations in other

12 cases . . . are satisfactory evidence of the prevailing market rate.” Id. at 980 (quoting United

13 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)). The Court

14 may also consider cases setting reasonable rates during the time period in which the fees

15 in the present action were incurred. See Camacho, 523 F.3d 973, 981 (9th Cir. 2008) (citing

16 Bell v. Clackamas Cty., 341 F.3d 858, 869 (9th Cir. 2003)); Bell, 341 F.3d at 869 (holding

17 that district court abused its discretion in applying “market rates in effect more than two

18 years before the work was performed”) (emphasis in original). “Once the fee applicant has

19 proffered such evidence, the opposing party must produce its own affidavits or other

20 evidence to rebut the proposed rate.” Cortes v. Metro Life Ins. Co., 380 F. Supp. 2d 1125,

21 1129 (C.D. Cal. 2005) (citing Phelps Dodge Corp., 896 F.2d at 407).

22 Here, Defendant’s counsel seek approval of the following hourly rates, which are

23 themselves discounted by Defendant’s insurer from the attorneys’ standard rates: $250 per

24 hour for Nadia Bermudez, a shareholder with 19 years of experience, and Andrea Oxman,

25 a shareholder with 14 years of experience; $225 per hour for Lindsey Casillas as an

26 associate until January 1, 2020, then $250 per hour thereafter as a shareholder with 10 years

27 of experience; $225 per hour for Charles Gulley, an associate with 4 years of experience,

28 and Patrick Goode, an associate with 7 years of experience; and $100 per hour for Cam

1 Picano, a paralegal with 30 years of experience. Bermudez Decl. ¶¶ 14–21; Declaration of

2 Lindsey N. Casillas (“Casillas Decl.,” ECF No. 103-2) ¶ 3. As described in the Bermudez

3 and Casillas Declarations, both shareholders’ rates were discounted significantly for this

4 matter from their regular rates of $450 per hour and $350 per hour, respectively. Id.

5 Plaintiffs did not object to the reasonableness of these rates in their Response, and

6 the Court concludes that the hourly rates requested for Defendant’s counsel are more than

7 reasonable in light of their experience and the prevailing market rates in this District for

8 the relevant time period.

9 2. Reasonableness of the Hours Expended

10 “The party seeking an award of fees should submit evidence supporting the hours

11 worked.” Hensley, 461 U.S. at 434. “The district court . . . should exclude . . . hours that

12 were not ‘reasonably expended’” and “hours that are excessive, redundant, or otherwise

13 unnecessary.” Id. “[T]he [opposing party] bears the burden of providing specific evidence

14 to challenge the accuracy and reasonableness of the hours charged.” McGrath, 67 F.3d at

15 255 (citing Blum, 465 U.S. at 892 n.5; Gates v. Gomez, 60 F.3d 525, 534–35 (9th Cir.

16 1995)). “Overlitigation deemed excessive does not count towards the reasonable time

17 component of a lodestar calculation,” Puccio v. Love, No. 16-CV-02890 W (BGS), 2020

18 WL 434481, at *6 (S.D. Cal. Jan. 28, 2020) (citing Tomovich v. Wolpoff & Abramson, LLP,

19 No. 08cv1428-JM (BLM), 2009 WL 2447710, at *4–5 (S.D. Cal. Aug. 7, 2009)), although

20 the Ninth Circuit has also instructed that, “[b]y and large, the court should defer to the

21 winning lawyer’s professional judgment as to how much time he was required to spend on

22 the case; after all, he won, and might not have, had he been more of a slacker.” Moreno

23 v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

24 Here, Defendant seeks to recover for 867.1 hours billed over a period beginning in

25 January 2018 and spanning more than two and one-half years; these hours include

26 analyzing and answering the pleadings; preparing the Rule 68 offer; opposing at least three

27 substantive motions filed by Plaintiffs; preparing for, defending, and taking multiple

28 depositions; engaging in expert discovery; preparing and responding to various discovery

1 motions; participating in conferences with opposing counsel and the Court; propounding

2 and responding to discovery requests; preparing for and participating in the evidentiary

3 hearing regarding Plaintiffs’ standing; and preparing the instant Motion for attorneys’ fees.

4 See Bermudez Decl. ¶ 20; id. Ex. G. Defendant’s counsel have provided the Court with

5 more than forty pages of redacted account statements for this matter detailing the billing

6 entries for the hours claimed. See generally id. Ex. G. The total on the invoices reflects

7 867.1 hours of work, totaling $203,667.50.5 See id.

8 Defendant also seeks fees for an additional 9.0 hours of Ms. Bermudez’s time, for a

9 total of $2,250.00, for the anticipated drafting of the reply brief in support of (5.0 hours)

10 and preparation for the hearing on (4.0 hours) the Motion. See id. ¶ 24.

11 Plaintiffs raise no objections to the number of hours worked by Defendant’s counsel.

12 Having reviewed Defendant’s counsel’s billing statements, the Court finds them devoid of

13 clerical and duplicative work and finds the hours worked reasonable in light of the length

14 and complexity of the litigation. The Court also finds the requested 5.0 hours of Ms.

15 Bermudez’s time for preparation of the reply brief in support of the instant Motion

16 reasonable.6 Accordingly, the Court calculates the lodestar figure as follows:

17 / / /

18 / / /

19 / / /

20 / / /

21 / / /

22 / / /

23

24

25 5 Defendant claims that the total fees requested for work completed as of the filing of the Motion total

$202,817.50. See Bermudez Decl. ¶ 21. The Court arrived at a slightly different figure of $203,667.50.

26 Given that, as Defendant argues, rates in excess of the insurance-adjusted rates would be reasonable here,

the Court finds it appropriate to go with the slightly higher figure.

27

28 6 As no hearing was held on the present Motion, the Court finds no need to award the additional 4.0 hours

1 Timekeeper Reasonable Rate Reasonable Hours Fee

2 N. Bermudez $250 400.5 + 5.0 = 405.5 $101,375.00

3 $225 268.7 $60,457.50

L. Casillas

4 $250 3.2 $800.00

5 A. Oxman $250 17.6 $4,400.00

6 P. Goode $225 6.8 $1,530.00

7 C. Gulley $225 154.6 $34,785.00

8 C. Picano $100 15.7 $1,570.00

9 Total 867.1 $204,917.50

10

11 3. Adjustment to the Lodestar Figure

12 “[I]n appropriate cases, the district court may adjust the ‘presumptively reasonable’

13 lodestar figure based upon the factors listed in Kerr.” Intel Corp. v. Terabyte Int’l, Inc., 6

14 F.3d 614, 622 (9th Cir. 1993) (citing D’Emmanuele v. Montgomery Ward & Co., 904 F.2d

15 1379, 1383 (9th Cir. 1990), overruled on other grounds by Dague, 505 U.S. 557). The

16 Kerr factors are:

17 (1) the time and labor required[;] (2) the novelty and difficulty of

the questions involved[;] (3) the skill requisite to perform the

18

legal service properly[;] (4) the preclusion of other employment

19 by the attorney due to acceptance of the case[;] (5) the customary

fee[;] (6) whether the fee is fixed or contingent[;] (7) time

20

limitations imposed by the client or the circumstances[;] (8) the

21 amount involved and the results obtained[;] (9) the experience,

reputation, and ability of the attorneys[;] (10) the ‘undesirability’

22

of the case[;] (11) the nature and length of the professional

23 relationship with the client[;] and (12) awards in similar cases.

24 526 F.2d at 70. “The lodestar amount presumably reflects the novelty and complexity of

25 the issues, the special skill and experience of counsel, the quality of representation, and the

26 results obtained from the litigation.” Intel Corp., 6 F.3d at 622 (citing D’Emanuele, 904

27 F.3d at 1383). While the court may rely on any of these factors to increase or decrease the

28 lodestar figure, there is a “‘strong presumption’ that the lodestar is the reasonable fee.”

1 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting City of Burlington, 505

2 U.S. at 562); accord Harman v. City & Cty. of San Francisco, 158 Cal. App. 4th 407, 416

3 (2007).

4 Neither party seeks any adjustment to the lodestar figure here. Nonetheless, while

5 “[c]ourts are not required to generate arguments to oppose the merits of a fee request when

6 the litigants themselves did not provide such argument[,] . . . Ninth Circuit precedent . . .

7 highlights the Court’s duty to review the reasonableness of a fee request.” Douzat v. Saul,

8 No. 2:17-CV-01740-NJK, 2020 WL 3408706, at *1 (D. Nev. June 11, 2020) (citations

9 omitted). Accordingly, here, the Court finds it necessary to consider the eighth factor, the

10 results obtained.

11 As the Ninth Circuit has recognized, “[i]n Hensley the Supreme Court noted that the

12 ‘results obtained’ was one factor that might lead the district court to adjust the

13 presumptively reasonable lodestar calculation and that this factor ‘is particularly crucial

14 where a plaintiff is deemed “prevailing” even though he succeeded only on some of his

15 claims for relief.’” Gates v. Deukmejian, 987 F.2d 1392, 1404 (9th Cir. 1992) (quoting

16 Hensley, 461 U.S. at 434). “[Courts within the Ninth Circuit] have applied Hensley’s

17 degree of success principles to a variety of fee-shifting statutes, including civil rights

18 claims, Americans With Disability Act claims, and even state claims.” Aguirre v. L.A.

19 Unified Sch. Dist., 461 F.3d 1114, 1119 (9th Cir. 2006). Further, following Hensley, courts

20 have adjusted fee awards to prevailing defendants on a theory of limited or partial success.

21 See, e.g., Valencia v. City of Stockton, No. 2:16-CV-2081-JAM-AC, 2018 WL 4008771,

22 at *6 (E.D. Cal. Aug. 20, 2018) (adjusting fee award to prevailing defendants based on

23 limited success); League of United Latin Am. Citizens Inc v. Eureste, No. 13-CV-04725-

24 JSC, 2014 WL 5473560, at *2–3 (N.D. Cal. Oct. 28, 2014) (reducing mandatory fee award

25 to defendants who partially prevailed on special motion to strike).

26 A court adjusting fees to account for a party’s partial or limited success engages in

27 a two-part analysis: first, it asks whether the successful and unsuccessful claims are related;

28 if so, the court evaluates the significance of the overall relief obtained compared to the

1 hours reasonably expended. Schwarz v. Sec’y of Health & Hum. Servs., 73 F.3d 895, 901–

2 02 (9th Cir. 1995) (citations omitted). If the overall relief obtained was “excellent,” “full

3 compensation may be appropriate, but if only ‘partial or limited success’ was obtained, full

4 compensation may be excessive.” Id. at 902 (citations omitted). In cases finding the

5 prevailing party’s success to be limited, courts often reduce the lodestar by a percentage

6 reflective of the prevailing party’s degree of success. See, e.g., Antoninetti v. Chipotle

7 Mexican Grill, Inc., 49 F. Supp. 3d 710, 724–26 (S.D. Cal. 2014) (reducing lodestar by

8 fifty percent in light of prevailing party’s limited success and collecting cases applying or

9 affirming similar percentage-based reductions), aff’d sub nom. Goldkorn v. Chipotle

10 Mexican Grill, Inc., 669 F. App’x 920 (9th Cir. 2016).

11 While this Court has determined that Defendant was, in fact, a prevailing party, see

12 supra Section I.A, the Court nonetheless finds Defendant’s success to be limited given that

13 the Court only dismissed the ADA claim, remanding the Unruh Act claim—premised on

14 the same conduct allegedly violating the ADA and therefore clearly related—to the state

15 court. Accordingly, while Defendant successfully eliminated one of Plaintiffs’ two claims

16 from the litigation, Defendant did not eliminate its need to continue to litigate the merits

17 of the conduct underlying both claims in a different forum. See Resp. at 13 (noting that

18 “[t]his case was remanded to the California Superior Court where it will continue to be

19 litigated and decided on its merits”). In light of the limited nature of success achieved by

20 Defendant, the Court concludes that an award of the full lodestar figure would be excessive.

21 Accordingly, the Court finds a fifty percent reduction of the lodestar figure appropriate to

22 account for Defendant’s limited success, and the Court therefore adjusts the lodestar figure

23 from $204,917.50 to $102,458.75.

24 B. Costs

25 Defendant also requests costs in the amount of $12,615.73. See Mot. Mem. at 12:9–

26 11. Defendant provides the Court with a detailed invoice of costs incurred for the entirety

27 of the matter, including such items as filing fees, copies, transportation costs, transcript

28 fees, conference call costs, postage, and meals. See Bermudez Decl. Ex. H; see also id.

1 ||§]23. No objections have been made to these costs, which the Court finds typical and

2 ||reasonable. The Court therefore awards Defendant $12,615.73 in costs incurred in

3 connection with this lawsuit.

4 CONCLUSION

5 For the reasons stated above, the Court GRANTS IN PART Defendant’s Motion

6 ||(ECF No. 103). Plaintiffs SHALL PAY Defendant the total sum of $115,074.48,

7 consisting of $102,458.75 in attorneys’ fees and $12,615.73 in costs.

8 IT IS SO ORDERED.

9 Dated: May 14, 2021 . tt f te

10 on. Janis L. Sammartino

11 United States District Judge

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