Canady v. C & CH, B210316 (Cal. App. 5/13/2009)

Decision Date13 May 2009
Docket NumberB210316
CourtCalifornia Court of Appeals Court of Appeals
PartiesSAM CANADY, Plaintiff and Appellant, v. C & CH, Defendant and Respondent.

Appeal from a judgment of the Superior Court of Los Angeles County, No. BC352471, Victor E. Chavez, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Center for Disability Access and Russell C. Handy for Plaintiff and Appellant.

Law Offices of Ricky W. Poon and Ricky W. Poon for Defendant and Respondent.



This is a disability discrimination action against a motel. Plaintiff, Samuel Canady, recovered $1,000 in statutory damages. He appeals from an order after judgment awarding him attorneys' fees. Plaintiff requested $33,918.20 in fees. The trial court, without indicating its reasons, awarded only $ 3,000. We find plaintiff has not met his burden to show, by an adequate record, that the trial court clearly abused its discretion. Accordingly, we affirm the order.

A. The Pleading And Pretrial Proceedings

The record before us contains no evidence of the underlying facts. Plaintiff has failed to designate a reporter's transcript of the trial or provide a suitable substitute. It appears to be undisputed, however, that plaintiff, who uses a wheelchair, went to a motel four miles from his house and discovered it was inaccessible—there was no handicapped parking space and no ramp leading to an entrance. On May 16, 2006, plaintiff filed a complaint against the motel owner, defendant, C & CH, LLC. Plaintiff alleged: he went to defendant's motel on April 7, 2006 to rent a room, but "there was a lack of a van accessible disabled parking, a lack of accessible disabled parking places, and a lack of an accessible room"; plaintiff was "frustrated, angry and/or vexed" as a result; and he "would like to return and patronize" defendant's motel when it is brought into compliance with the law. Plaintiff asserted causes of action for violations of: the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.) (first cause of action); the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (second cause of action); and the California Disabled Persons Act (Civ. Code, § 54 et seq.) (third cause of action). (All further statutory references are to the Civil Code except where otherwise noted.) The Unruh Civil Rights Act and California Disabled Persons Act causes of action were premised on the alleged violation of the Americans With Disabilities Act. (§§ 51, subd. (f), and 54.1, subd. (d).) Plaintiff also alleged, but later abandoned, a fourth cause of action for negligence. Plaintiff sought injunctive relief, statutory damages, and attorneys' fees. Plaintiff did not seek any actual damages.

Plaintiff unsuccessfully sought a summary judgment. Plaintiff's points and authorities in support of the summary judgment motion have been included in the record on appeal. But no other document filed in connection with that motion has been included in the record. Plaintiff claims, and defendant does not specifically deny, that defendant never made any offer to settle this matter. In connection with his attorneys' fees motion (discussed below), plaintiff's counsel declared, "Defense counsel informed me that they were going to take this case to a defense judgment and they pursued that goal with no deviation."

B. The Judgment

Two years after the complaint was filed, following a two-day court trial, on May 30, 2008, the trial court entered a judgment in plaintiff's favor. The trial court awarded plaintiff $ 1,000 in statutory damages under the California Disabled Persons Act, section 54.3, subdivision (a). In addition, the trial court ordered defendant "to install grab bars in the bathroom of one" of defendant's guestrooms. Plaintiff claims that while this action was pending, defendant built an access ramp. There is no evidence before us in support of that assertion. As noted, no reporter's transcript of the trial has been provided.

C. The Attorneys' Fees Motion

Following entry of the judgment, plaintiff moved to recover $33,918.20 in attorneys' fees. Mark D. Potter filed a declaration in support of the motion, together with a billing statement. Mr. Potter declared as follows. Plaintiff was represented in this action by the Center for Disability Access in San Marcos, California (the center). Four individual attorneys worked on the case—Mr. Potter, Ray Ballister, Russell Handy, and Christiana Poynter. Mr. Potter had been practicing disability law, exclusively, for 14 years. Mr. Potter spent 61.2 hours on plaintiff's case. His billing rate was $295 per hour. Mr. Ballister had been practicing law as a litigator for 24 years. The center used Mr. Ballister for settlement conferences, depositions, and trials. Mr. Ballister devoted 9 hours to this case and billed at $250 per hour. Mr. Handy had been practicing law for nine years. Mr. Handy worked 32.6 hours on plaintiff's case. His billing rate was $250 per hour. Ms. Poynter had been in practice for three years. Her practice had been devoted exclusively to Americans With Disabilities Act litigation. She had drafted hundreds of discovery documents and motions. The center billed at a rate of $200 per hour for her work, which consumed 8.1 hours. Plaintiff also presented evidence the foregoing billing rates were reasonable.

The $33,918.20 figure included additional expenses that Mr. Potter did not discuss in his declaration. According to the billing statement, a fifth attorney, William Moore, attended a one-hour case management conference. The cost for his time was $100. Plaintiff also billed one hour at $75 for an investigator, Joe Costas, who performed a site inspection, and 14.7 hours for Paul Bishop, a consultant, at a total cost of $3,669.20. Mr. Potter's declaration did not mention Mr. Moore, Mr. Costas, or Mr. Bishop.

According to the billing records attached to Mr. Potter's declaration, the legal work in plaintiff's case included: discovery requests propounded to defendant including admission requests, form and special interrogatories, and document production demands; a deposition notice from plaintiff to defendant; a site inspection request by plaintiff, objected to by defendant; the request was followed by an opposed motion to compel the site inspection; reviewing public records; drafting a case management conference statement; attending a case management conference; drafting a proposed joint stipulation; plaintiff's responses to discovery propounded by defendant including admission requests, document production demands, and interrogatories; defendant's notice of plaintiff's deposition; plaintiff's amended request for entry and inspection; preparing plaintiff for his deposition; reviewing the site inspection report; plaintiff's motion for a protective order; plaintiff's motion to compel discovery; engaging in a dispute as to the location of a deposition; plaintiff's ex parte application to continue trial, opposed by defendant; attending the hearing on the ex parte application; drafting plaintiff's summary judgment motion, including declarations in support thereof; plaintiff's demand for supplemental interrogatories; plaintiff's motion to compel defendant's deposition; an original and four amended notices of defendant's deposition; attendance at a final status conference; plaintiff's trial brief; preparation for and attendance at a two-day court trial; and plaintiff's attorneys' fees motion. According to plaintiff's counsels' billing records, more than 50 hours were spent on discovery-related tasks including two depositions. There is no entry for any legal research.

In support of plaintiff's attorneys' fees motion, Mr. Potter presented further evidence the center had received fee awards similar to the requested amount in several federal and state court cases. The points and authorities in support of plaintiff's fee motion noted, "[This] case is very reminiscent of another [Americans With Disabilities Act] bench trial between plaintiff's counsel, Russell Handy, and defense counsel, Ricky Poon, on November 8, 2007, (Diaz v. Cleaning Lab Inc., BC357997) in front of Judge Rolf M. Treu, where plaintiff Diaz prevailed on almost identical issues and an identical damage award, and Judge True [sic] granted plaintiff's fee application in its entirety in the amount of $28,357.60."

Defendant opposed plaintiff's attorneys' fees motion. No evidence accompanied the opposition. Defendant claimed: lawyers affiliated with the center had filed at least 200 cases for plaintiff within a few years; plaintiff's counsel used a cut and paste method and filed boilerplate complaints and motions; the assertion the center was unable to take other cases while this matter was being litigated was a "big lie"; the center's method of operation was to file multiple actions seeking minimal statutory damages and then claim $25,000 to $ 30,000 in attorneys' fees—an "unethical" practice; and the case was neither novel nor difficult.

The trial court took plaintiff's attorneys' fees motion under submission. On July 8, 2008, the trial court awarded plaintiff $3,000 in fees. The trial court at no time gave any indication of the reasons for its decision. The minute order states only, "Motion is called for hearing, argued and taken under submission. [¶] Later, the Court rules as follows: Plaintiff's Motion for Attorney fees is Granted in the amount of $3,000. [¶] Clerk to give notice." Plaintiff did not request a statement of decision.


As noted above, plaintiff recovered $1,000 in statutory damages under the California Disabled Persons Act, section 54.3, subdivision (a). The Disabled Persons Act incorporates the Americans With Disabilities Act. A violation of the Americans With Disabilities Act is also a violation of the Disabled Persons Act. (§ 54, subd. (c).) Section 54.3...

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