Martin Vogel v. Harbor Plaza Center, LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN VOGEL, No. 19-56141
Plaintiff-Appellant, D.C. No.
2:14-cv-04609-SJO-SH
v.
HARBOR PLAZA CENTER, LLC, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted August 3, 2021**
Pasadena, California
Before: PAEZ, CALLAHAN, and BENNETT, Circuit Judges.
Martin Vogel (“Vogel”) sued Harbor Plaza Center, LLC (“Harbor Plaza”)
for violations of the Americans with Disabilities Act (“ADA”), the California
Disabled Persons Act, the California Unruh Civil Rights Act, and the California
Health and Safety Code. The district court granted in part Vogel’s motion for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
default judgment, awarding $4,000 in statutory damages and $3,590.83 in travel
costs. The district court also awarded attorney’s fees based on the fixed fee
schedule set forth in Central District Local Rule 55-3. Rule 55-3, however, allows
parties to file a written request for the court to depart from the fixed fee schedule
and award reasonable fees. C.D. Cal. R. 55-3. Although Vogel filed such a
request, the district court applied the fee schedule and awarded only $600 in
attorney’s fees. Vogel timely appealed.
We vacated Vogel’s initial fee award and remanded, explaining that when a
plaintiff files a request pursuant to Local Rule 55-3, the district court must award a
“reasonable” fee without regard to the fee schedule. Vogel v. Harbor Plaza Ctr.,
LLC, 893 F.3d 1152, 1159 (9th Cir. 2018). We remanded the attorney’s fees issue
and instructed the district court to use the lodestar method and consider both
Vogel’s original request for attorney’s fees and an alleged additional $34,437.50
incurred on appeal. The district court then awarded Vogel a total of $24,491.25,
which included $17,091.25 in attorney’s fees for work in the district court and
$7,400 for work on appeal. The present appeal followed, and the only question at
issue is whether the district court abused its discretion in granting a reduced award
of attorneys’ fees primarily by setting lead counsel Hubbard’s hourly rate at $300
for his work in the district court and on appeal.
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We review for abuse of discretion a district court’s award of attorney’s fees
under the ADA. Armstrong v. Davis, 318 F.3d 965, 970 (9th Cir. 2003). We
review for clear error the underlying factual determinations and review de novo the
legal analysis relevant to the fee determination. Barrios v. Cal. Interscholastic
Fed’n, 277 F.3d 1128, 1133 (9th Cir. 2002). We affirm.
When the district court determines a reasonable hourly rate, it must consider
the experience, reputation, and ability of the attorneys; the outcome of the results
of the proceedings; the customary fees in the community; and the novelty or the
difficulty of the question presented. Hiken v. Dep’t of Def., 836 F.3d 1044, 1037
(9th Cir. 2016); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir.
1986). The forum district generally represents the relevant legal community.
Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010).
Vogel argues that the billing rate of $300 is inadequate for his highly
experienced lead attorney who represented him in this case. He argues that his
lead counsel was entitled to $600-625 per hour, which he contends is a reasonable
rate in the Central District. See Rocca v. Den, 109 LP, 2017 WL 2562097, at *3
(C.D. Cal. June 13, 2017). Additionally, Vogel argues that the district court’s
hourly rate determination contravenes Moreno v. City of Sacramento, which held
that exclusive reliance on historical fee rates, “no matter how well intentioned or
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administered [] is inconsistent with the methodology for awarding fees that the
Supreme Court and our court has adopted.” 534 F.3d 1106, 1115 (9th Cir. 2008).
Hubbard based his hourly rate on his declaration describing his background
and experience, with no additional declarations from other attorneys confirming
the reasonableness of the rates requested by Vogel. Although Hubbard has
substantial experience in litigating ADA cases, this experience is not determinative
of the reasonableness of the requested rate. The district court looked to fee awards
in other Central District ADA cases, which ranged from $300-650. Relying on
Dolanotto, the district court reasonably concluded that $300/hour was an
appropriate rate. Vogel v. Dolanotto, LLC, 2018 WL 1684303, at *3 (C.D. Cal.
Apr. 5, 2018).
Vogel points to Rocca as evidence that a higher billing rate is justified, but
that case is distinguishable. The defendant in Rocca ultimately prevailed after
proceeding to trial. In contrast, the present case involved a default proceeding and
a fairly straightforward appeal, as Harbor Plaza has not participated in this case
since filing its Answer. Although $300 per hour may be on the low side of the
$300-650 range for ADA cases in the Central District, Vogel has not shown that
the district court abused its discretion in setting Hubbard’s hourly rate at $300 per
hour.
AFFIRMED.
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