Walker, et al v. San Diego City Of, et al, No. 3:1997cv01547 - Document 256 (S.D. Cal. 2009)
Court Description: ORDER Granting in Part and Denying in Part Plaintiffs' 246 Motion for Attorneys Fees. Plaintiffs are awarded the sum of $362,902.75 as attorney's fees. ($368,760.00 - $5,857.25 = $362,902.75) Defendant shall pay that sum to Plaintiffs forthwith. Signed by Magistrate Judge Leo S. Papas on 04/15/09. (All non-registered users served via U.S. Mail Service).(jcj) (jrl).
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Walker, et al v. San Diego City Of, et al Doc. 256 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BEVERLY WALKER, et al., 12 Plaintiffs, 13 v. 14 CITY OF SAN DIEGO, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) Civil No. 97-1547-LSP ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS FEES (DOC. # 246) 16 17 Plaintiffs filed their original Complaint in 1997, alleging 18 a plethora of Americans with Disabilities Act (“ADA”) violations at 19 Qualcomm Stadium (“the Stadium”). 20 Complaint 21 memorialized in a Settlement Agreement, effective February 12, 2001. 22 The Court approved the Settlement Agreement and, pursuant to the 23 stipulation of the parties, retained jurisdiction to enforce its 24 terms. were settled and the The claims asserted in the terms of the settlement were 25 The Settlement Agreement contained dates for completion of 26 modifications to be made to the Stadium, the majority of which were 27 28 1 97CV1547 Dockets.Justia.com 1 to be completed by April 1, 2001.1 2 Stadium were to be completed by April 1, 2002.2 3 expected to be the “Modification Completion Date.”3 Once the 4 Modification “Discount 5 Expiration Date” would also be established.4 6 tion Date determines the commencement of the “testing procedures.”5 7 The testing procedures would last for the Term6 of the Settlement 8 Agreement. Completion Date was Other modifications to the April 1, 2002 was established, the The Discount Expira- 9 Plaintiffs now seek attorney’s fees incurred from June 14, 10 2001 to January 29, 2009 for assuring and monitoring that Defendant 11 completed the modifications to the Stadium, and for preparation of 12 the Motion for Attorney’s Fees. 13 (“Defendant”) opposes Plaintiffs’ Motion for Attorney’s Fees. Defendant City of San Diego 14 15 16 17 1 18 19 2 20 21 3 22 23 4 24 25 5 26 27 28 6 These modifications included the designation and creation of transfer seats, installation of accessible seating in the suites, lowering of railings, creation of semi-ambulatory seats, installation of television monitors, restroom modifications and path of travel modifications. These modifications included wheelchair location modifications not located in the Stadium’s suites and skyboxes. As late as January 2009, the Court was informed that all of the modifications to the Stadium had not been completed. On January 15, 2009, the Court ordered that the final modifications to the Stadium that had not been completed as of that date, were to be completed by April 1, 2009. The Discount Expiration Date is defined in Section 19 of the Settlement Agreement as the date which is twelve (12) months after the date which is the later to occur of (i) April 1, 2002 or (ii) the Contract Modification Completion Date. The purpose of the testing procedures was to determine the accuracy of ticket availability and “sell-out” information. The Term of the Settlement Agreement is until (i) April 1, 2006 or (ii) four years after the Contract Modification Completion Date, which is the later to occur. Therefore, the testing procedures would last for four years after the date on which the modifications to the Stadium were completed. 2 97CV1547 1 Attorney’s Fees Provisions of the Settlement Agreement7 2 Sections 12, 13, 14 and Exhibit U of the Settlement Agreement 3 form the basis on which Plaintiffs request an award of attorney’s 4 from the Court. 5 Exhibit U states, in pertinent part: 6 City shall pay the sum of (a sum certain)... as reimbursement for all legal fees... and costs incurred in connection with the Lawsuit for the ten-year period beginning with the initiation of the Lawsuit in 1997 through the Effective date, and as full payment for any and all such fees and costs which will or may be incurred by Plaintiffs in connection with this Agreement, through September 1, 2007, or such later date as is determined to be the later of the final termination date of the Agreement or the enforcement provisions of the Agreement, except as provided in Sections 13 and 14 hereof. (emphasis added) 7 8 9 10 11 12 13 Section 12 of the Settlement Agreement states in pertinent 14 part: 15 ... City shall reimburse Plaintiffs for the fees... as well as other costs in accordance with Exhibit U... This amount shall be in complete satisfaction of any and all claims for reimbursement for such items incurred by or on behalf of Plaintiffs in connection with the Lawsuit through the final disposition and termination of this Agreement, except as otherwise provided in Sections 13 and 14 hereof. (emphasis added) 16 17 18 19 20 Section 13 of the Settlement Agreement states in pertinent 21 part: 22 ... In the event of any litigation or further proceedings between the parties hereto relating to this Agreement, the decision of the Court shall be final and non-appealable. In the discretion of the Court, the prevailing party in any such action may be entitled to recover reasonable attorney’s fees and costs incurred in connection therewith... 23 24 25 26 27 28 7 The parties entered into a “First Amendment to the Settlement Agreement & Mutual Release.” That document became effective on September 2, 2005. The Court refers to the original Settlement Agreement and the “First Amendment to the Settlement Agreement” as “Settlement Agreement.” 3 97CV1547 1 (emphasis added) 2 Section 14 of the Settlement Agreement states in pertinent 3 part: 4 In the event of any dispute regarding the Agreement or any Modifications made, or to be made by the City pursuant to the terms thereof, the parties agree to confer for the purpose of resolving, if possible, the dispute. If the parties hereto are unable to resolve such disputes, the matter may be referred to the Court as provided in and in accordance with the terms of Section 13 hereof. 5 6 7 8 9 The Court Agreement Held “Further Proceedings” Regarding the Settlement 10 11 Plaintiffs argue that Section 13 of the Settlement Agreement 12 allows for the award of additional attorney’s fees over and above 13 the sum certain referred to in Exhibit U to the Settlement Agree- 14 ment. 15 executed, Plaintiffs assert that they were concerned about future 16 problems that might arise with regard to the completion of the 17 modifications to the Stadium, above and beyond the anticipated 18 completion effort. 19 would have to spend more time than anticipated by the parties to 20 ensure that Defendant complied with the Settlement Agreement. 21 result, the parties included Section 13 in the Settlement Agreement, 22 which contemplates compensation for “further proceedings” needed to 23 enforce compliance with the Settlement Agreement. Specifically, at the time the Settlement Agreement was Therefore, they envisioned that their attorney As a 24 Defendant contends that the sum certain referred to in 25 Exhibit U to the Settlement Agreement was intended to include future 26 attorney’s fees that might be incurred by Plaintiffs’ in connection 27 with the lawsuit and Settlement Agreement, except as provided in 28 Sections 13 and 14 of the Settlement Agreement. 4 Specifically, 97CV1547 1 Section 13 provides that “(i)n the event of any litigation or 2 further proceedings between the parties relating to the Settlement 3 Agreement, the decision of the Court shall be final and non- 4 appealable. In the discretion of the Court, the prevailing party in 5 any such action may be entitled to recover reasonable attorneys fees 6 and costs...” 7 Plaintiffs to collect additional attorney’s fees under Section 13, 8 the Court would have had to issue a “final and non-appealable” 9 decision. Therefore, Defendant asserts that, in order for Additionally, Defendant contends that in matters where 10 the Court has not made such a decision, Section 13 is inapplicable. 11 The Court agrees and disagrees with Defendant’s interpreta- 12 tion of Section 13. 13 Settlement Agreement indicates that the parties contemplated that 14 Plaintiffs might be required to undertake additional effort, and 15 thus incur additional attorney’s fees, over and above the sum 16 certain referred to in Exhibit U. 17 designed to compensate Plaintiffs for the effort needed to monitor 18 and ensure that the delineated and agreed-upon modifications to the 19 Stadium would be made timely and consistent with their agreement 20 with Defendants. Section 13 was intended by the parties to serve 21 some purpose and it appears to the Court that it was designed to be 22 invoked only if the parties could not resolve disputes regarding 23 those 24 However, 25 disputes became necessary, such intervention would trigger the 26 provisions of Section 13 and could result in an award of attorney’s 27 fees to the prevailing party. 28 modifications if the A fair reading of Sections 13 and 14 of the by Court’s Exhibit U’s original purpose was themselves without intervention for Court involvement. resolution of those The Court agrees with Defendant’s observation that, “... in 5 97CV1547 1 order for Plaintiffs to collect additional attorney’s fees under 2 Section 13, the Court would have to issue a ‘final and non- 3 appealable’ decision.” 4 unable by themselves to resolve disputes regarding modifications to 5 the Stadium without Court intervention, then any decision by the 6 Court to resolve any such dispute brought before it would, consis- 7 tent 8 appealable” decision. 9 the parties’ stipulation and agreement that the Court’s decisions 10 would be final and non-appealable. The Court would then be required 11 to determine whether there was a prevailing party and grant or deny 12 attorney’s fees accordingly. 13 falling into both categories: disputes that were resolved between 14 the parties without Court involvement and disputes that required 15 Court intervention. 16 addresses in this Order. (See p. 10 of this Order) with 17 If, as described above, the parties were Defendant’s observation, become a “final and non- Any such decision would be consistent with The Court is mindful of circumstances It is only the latter category that the Court Almost immediately after April 1, 2001 (the first date that 18 certain modifications 19 Plaintiffs advised 20 Settlement Agreement. 21 Defendant’s construction drawings (which Defendant was required to 22 present 23 Settlement Agreement. 24 by themselves and Plaintiffs sought the Court’s intervention. On 25 August 7, 2001, the Court held a 26 to the disputes and ordered the parties to meet and confer regarding 27 the disputes and by August 30, 2001, bring any unresolved disputes 28 to the Court’s attention. to to the Defendant Plaintiffs Stadium about Plaintiff for review) were several also to be violations advised violated completed), of Defendant the terms of the that the The parties could not resolve these disputes Settlement Conference with regard Thereafter, the Court conducted numerous 6 97CV1547 1 Settlement Conferences and Status Conferences, and issued numerous 2 Orders 3 Agreement and completion of the modifications to the Stadium. 4 Settlement and Status Conferences regarding Defendant’s compliance 5 with the Settlement Agreement and modifications to the Stadium 6 continued to January 15, 2009. 7 fully complied with the Settlement Agreement and had not completed 8 the modifications to the Stadium. 9 the Court ordered that all modifications that need to be made to the regarding Defendant’s compliance with the Settlement The At that time, Defendant had not Therefore, on January 15, 2009, 10 Stadium shall be completed by April 1, 2009. During the 7 1/2 year 11 time period from August 2001 to January 2009, Defendant acknowledged 12 that it had not fully complied with the Settlement Agreement and had 13 not completed the modifications to the Stadium. The Court’s efforts 14 in these regards have been prompted by Plaintiffs’ bringing the 15 compliance and modification issues to the Court’s attention as a 16 result of the parties’ inability to resolve the disputes. Virtually 17 all the disputes resulted in the need for Defendant to undertake 18 remediation efforts pursuant to an oral or written order of the 19 Court. Moreover, the decisions made by this Court with regard to 20 these issues were final. 21 It is abundantly clear to the Court that “further proceed- 22 ings,” pursuant to Section 13 of the Settlement Agreement, were 23 required and conducted, and final decisions were issued by the 24 Court, to ensure compliance with the Settlement Agreement. The 25 decisions 26 regarding completion of the modifications to the Stadium. Even with 27 the Court’s intervention, Settlement Conferences, Status Conferences 28 and by Orders, the Court Defendant resolved has still 7 disputes not between fully the complied 97CV1547 parties with the 1 Settlement Agreement and has not completed the modifications to the 2 Stadium. 3 Plaintiffs Are the Prevailing Parties With Respect To Enforcement of the Settlement Agreement 4 5 Plaintiffs argue that, pursuant to Section 13, they are the 6 prevailing parties with respect to enforcement of the Settlement 7 Agreement. 8 additional attorney’s fees related to involving the Court to ensure 9 enforcement of the modifications to the Stadium. Therefore, they argue that they are entitled to Specifically, 10 Plaintiffs contend that since 2001, they have sought, through 11 judicial intervention to resolve disputes, to enforce the Settlement 12 Agreement and force Defendant to modify the Stadium to comply with 13 the Settlement Agreement. 14 violations of the Settlement Agreement have been continuous since 15 2001, and that judicial intervention to enforce the Settlement 16 Agreement has been the only effective way to achieve their goal. Further, they assert that Defendant’s 17 Defendant argues that, pursuant to the Settlement Agreement, 18 attorney’s fees and costs may only be awarded, in the Court’s 19 discretion, to the prevailing party in a situation where the Court 20 has made a decision relating to the Settlement Agreement, which is 21 “final and non-appealable.” 22 made such a decision, Section 13 of the Settlement Agreement is not 23 applicable and Plaintiffs would not be entitled to attorney’s fees. 24 In a case pursued under the American With Disabilities Act, 25 a court, “in its discretion, may allow the prevailing party... a 26 reasonable attorney’s fee.” 42 U.S.C. §12205 “For a litigant to be 27 a ‘prevailing party’ for the purpose of awarding attorneys’ fees, he 28 must meet two criteria: he must achieve a material alteration of the In situations where the Court has not 8 97CV1547 1 legal relationship of the parties, and that alteration must be 2 judicially sanctioned.” Jankey v. Poop Deck 537 F.3d 1122, 1129-30 3 (9th Cir. 2008) citing Buckhannon Bd. & Care Home, Inc. V. W. Va. 4 Dept. Of Health & Human Res. 532 U.S. 598, 605 (2001) 5 “A settlement agreement providing that the court will retain 6 jurisdiction to enforce the agreement satisfies the requirements to 7 render 8 Disabilities Act).” Jankey, supra at 1130, Skoff v. Meridien North 9 America 506 F.3d 832, 844, n. 12 (9th Cir. 2007) “The settlement 10 meaningfully alters the legal relationship between the parties if it 11 allows one party to require the other party ‘to do something it 12 otherwise would not be required to do.’” Jankey, supra at 1130, 13 citing Fischer v. SJB-P.D., Inc. 214 F.3d 1115, 1118(9th Cir. 2000) 14 Here, the Court dismissed Plaintiffs’ case pursuant to the 15 Settlement Agreement between the parties and retained jurisdiction 16 over 17 Settlement Agreement efforts by Plaintiffs’ counsel, conferences 18 held, and Orders issued by the Court have virtually all focused on 19 Plaintiffs’ attempts to force Defendant to comply with the Settle- 20 ment Agreement and complete the modifications to the Stadium. 21 result of almost every conference with the Court, and almost every 22 Order issued by the Court, came after the parties themselves were 23 unable to resolve their disputes and required Defendant to comply, 24 in some way, with the Settlement Agreement and/or make modifications 25 to the Stadium that had not, or have not, been made. In that 26 respect, the Court made final non-appealable decisions. 27 day, the legal relationship of the parties is meaningfully being 28 altered because the Court is issuing these decisions in which plaintiff the a Settlement prevailing Agreement party and 9 under its the (American enforcement. The 97CV1547 With post- The To this 1 Plaintiffs 2 something it otherwise would not be required to do.” 3 Plaintiffs are the prevailing parties in this case, and have been 4 the prevailing parties in virtually all post-Settlement Agreement 5 decisions issued orally and in writing by this Court. 6 Plaintiffs Are Entitled to Post-Settlement Agreement Attorney’s Fees 7 are asking Plaintiffs’ the counsel Court seeks to require an award Defendant of “to do Consequently, $368,760.00 in 8 attorney’s fees at the rate of $375.00 per hour for post-Settlement 9 Agreement work from June 14, 2001 to January 29, 2009. Plaintiffs’ 10 counsel has submitted orders of the court and declarations of 11 counsel in other cases in which Plaintiffs’ counsel was involved, 12 which indicate that Plaintiffs’ counsel’s rate of $375.00 per hour 13 is reasonable and appropriate. 14 tiffs’ counsel’s hourly rate. Therefore, the Court finds that 15 Plaintiffs’ counsel’s hourly rate of $375.00 per hour is reasonable. 16 Further, Defendant does not dispute the number of hours claimed by 17 Plaintiffs’ counsel for the work performed. 18 Defendant does not dispute Plain- Plaintiffs’ counsel has indicated that Plaintiffs do not 19 request attorney’s fees for: 20 1. Fee Agreement Benefits 21 After the execution of the Settlement Agreement, Plaintiffs 22 were 23 selecting seating locations over a two season period. 24 counsel 25 completing these benefits transactions. 26 2. 27 28 entitled to spent a certain ticket significant and amount other of benefits time including Plaintiffs’ coordinating and Plaintiff Walker Estate Damages After Plaintiff Beverly Walker (“Walker”) passed away, Plaintiffs’ counsel spent a significant amount of time researching 10 97CV1547 1 whether Walker’s estate beneficiaries could continue her damage 2 claims. 3 Walker’s 4 Ultimately, the estate decided not to pursue any remaining damage 5 claims. 6 3. 7 Plaintiffs’ counsel drafted extensive correspondence to estate executor regarding Walker’s damage claims. Plaintiff Robert Hann Special Needs Trust Plaintiffs’ counsel spent a significant amount of time 8 obtaining the Court’s approval of the Special Needs Trust for 9 Plaintiff Robert Hann. 10 4. 11 Ticket Availability Plaintiffs’ counsel spent a significant amount of time 12 communicating with Stadium representatives about the availability of 13 free tickets for events. 14 5. Ticket Distribution 15 When Plaintiffs’ counsel received free tickets pursuant to 16 the Settlement Agreement, she and her assistant spent significant 17 amounts of time delivering the free tickets to the “will call” 18 window at the Stadium, to aid in the distribution of those tickets. 19 6. 20 Tracking Ticket Use Plaintiffs’ counsel spent a significant amount of time 21 communicating with Stadium representatives regarding trying to track 22 the 23 experienced in the years after the execution of the Settlement 24 Agreement. 25 7. 26 use of wheelchair location free tickets due to problems Bollards Stadium representatives wanted to install bollards at curb 27 cuts around the Stadium for security reasons. 28 spent a significant amount of time discussing the issue with Stadium 11 Plaintiffs’ counsel 97CV1547 1 representatives. 2 8. Plaintiff Walker and Plaintiff Neudeck Communications 3 Since the execution of the Settlement Agreement, Plaintiffs 4 Walker and Neudeck raised numerous Stadium-related issues that were 5 not addressed in the Settlement Agreement. 6 spent a significant amount of time discussing these issues with 7 Plaintiffs. 8 (Supplemental Declaration of Amy B. Vandeveld at 2-3) Plaintiffs’ counsel 9 Defendant states that the items identified above do not 10 represent an exclusive nor exhaustive list of activities performed 11 for which attorney’s fees and costs may not be recovered. 12 The Court has discretion to determine the amount of the fee 13 award. Jankey, supra at 1132, quoting Hensley v. Eckerhart 461 U.S. 14 424, 437 (1983) “If the court believes the overall award is too 15 high, it needs to say so and explain why, rather than (make) summary 16 cuts in various components of the award.” Jankey, supra at 1133, 17 Moreno v. City of Sacramento 534 F.3d 1106, 1113 (9th Cir. 2008) 18 Here, is clear that Plaintiffs’ counsel’s additional work, 19 over and above the sum certain noted in Exhibit U, was primarily 20 dedicated to enforcement of the Settlement Agreement and ensuring 21 that modifications to the Stadium were completed timely and in 22 accordance with the Settlement Agreement. 23 Plaintiffs’ counsel’s efforts resulted in “further proceedings” in 24 which the Court had to resolve a dispute that could not be resolved 25 by the parties themselves. 26 presented to the Court for resolution, Plaintiffs could not be the 27 “prevailing parties” because any material alteration of the legal 28 relationship of the parties was not judicially sanctioned. However, not all of Further, if these disputes were not 12 97CV1547 These 1 efforts include Plaintiffs’ counsel’s work performed to: produce a 2 brochure regarding a disabled person’s access to purchase of tickets 3 for events at the Stadium and access to the Stadium and its seats 4 for the disabled8, to review and correct construction plans for 5 modifications to be made to the Stadium9, to negotiate the number and 6 placement of parking places for disabled drivers10, to negotiate the 7 procedure by which a non-disabled person could purchase disabled 8 access seating11, to obtain free tickets to events at the Stadium as 9 referenced in the Settlement Agreement12, and to remedy disruptions 10 caused by one of the Plaintiffs during Stadium events.13 The total 11 amount 12 Therefore, the Court reduces an attorney’s fee award to Plaintiffs 13 by that amount. 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ of attorney’s fees for these efforts total $5,857.25. 20 21 8 22 9 23 24 25 10 11 26 27 28 12 13 Plaintiffs’ counsel’s attorney’s fees regarding the brochure total $1,695.75. Plaintiffs’ counsel’s attorney’s fees regarding the construction plans total $3,037.00 . Plaintiffs’ counsel’s attorney’s fees regarding the parking spaces total $150.00. Plaintiffs’ counsel’s attorney’s fees regarding the procedure for a non-disabled person’s purchase of disabled access seating total $787.00. Plaintiffs’ counsel’s attorney’s fees regarding the free tickets total $75.00. Plaintiffs’ counsel’s attorney’s disruptions total $112.50. 13 fees regarding remedying 97CV1547 the 1 As a result, Plaintiffs are awarded the sum of $362,902.75 as 2 attorney’s fees. ($368,760.00 - $5,857.25 = $362,902.75) Defendant 3 shall pay that sum to Plaintiffs forthwith. 4 5 Plaintiffs’ Motion for Attorneys Fees is GRANTED in part and DENIED in part. 6 7 DATED: April 15, 2009 8 9 10 Hon. Leo S. Papas U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 97CV1547
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