1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 PETER STROJNIK, Case No. 19-cv-07579-VKD

9 Plaintiff, ORDER GRANTING DEFENDANT'S 10 v. MOTION FOR ATTORNEY'S FEES

11 PORTOLA HOTEL, LLC, Re: Dkt. No. 30 Defendant. 12

13 14 Defendant Portola Hotel, LLC (“Portola”) moves for an award of attorney’s fees as a 15 prevailing party pursuant to the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 16 § 12205, or, in the alternative, for sanctions pursuant to Rule 11 of the Federal Rules of Civil 17 Procedure,

, or the Court’s inherent powers. Dkt. No. 30. Plaintiff Peter Strojnik 18 opposes the motion. Dkt. No. 33. 19 The Court finds this matter suitable for resolution without oral argument. Civil L.R. 7- 20 1(b). Having considered the parties’ submissions, the Court grants defendant’s motion for 21 attorney’s fees pursuant to the ADA’s fee-shifting provision. 22 I. BACKGROUND 23 On March 20, 2019, Mr. Strojnik filed this disability rights action pro se asserting a claim 24 under Title III of the Americans with Disabilities Act of 1990 (“ADA”),

, et 25 seq., as well as related state law claims, challenging alleged accessibility barriers. Dkt. No. 1. On 26 March 17, 2021, the Court granted Portola’s motion to dismiss for lack of standing, dismissed the 27 related state law claims, and entered judgment in Portola’s favor. Dkt. Nos. 28, 29. Portola now II. LEGAL STANDARD 1 Under the ADA, the Court may award a “prevailing party” “a reasonable attorney’s fee, 2 including litigation expenses, and costs.”

. This provision does not distinguish 3 between plaintiffs and defendants, but the “policy considerations which support the award of fees 4 to a prevailing plaintiff are not present in the case of a prevailing defendant.” Kohler v. Bed Bath 5 & Beyond of Cal., LLC, dba Bed Bath & Beyond #1136,

(9th Cir. 2015) 6 (quoting Christiansburg Garment Co. v. EEOC,

, 418–19 (1978)). Accordingly, fees 7 may be awarded to a prevailing defendant only when “the plaintiff’s action was frivolous, 8 unreasonable, or without foundation.” Kohler,

(quoting Summers v. A. Teichert 9 & Son,

(9th Cir. 1997) (internal quotation marks omitted)); see also 10 Christiansburg Garment Co.,

. 11 An action is frivolous if it lacks an arguable basis in law or fact; it need not be brought in 12 bad faith. CRST Van Expedited Inc. v. EEOC,

(2016); Shaw v. Gera, No. 13 5:18-cv-06765-EJD,

, at *2 (N.D. Cal. Oct. 7, 2019) (citing Peters v. Winco 14 Foods, Inc.,

(E.D. Cal. 2004)). In applying this standard, the Court 15 must assess the action at the time it was filed, taking into consideration whether the claims raise 16 issues that were not clearly resolved by prior case law. Kohler,

. In addition, the 17 Court must avoid “awarding fees simply because a plaintiff did not ultimately prevail.”

at 18 1266. 19 III. DISCUSSION 20 Mr. Strojnik opposes Portola’s motion for attorney’s fees and costs on two related grounds. 21 First, he argues that Portola did not prevail because the Court did not reach the merits of his claims 22 but dismissed the complaint for lack of subject matter jurisdiction. Second, he argues that because 23 the Court did not reach the merits, his claims cannot be considered frivolous, unreasonable, or 24 without foundation. Dkt. No. 33 at 4-5. The Court considers each argument. 25 A. Whether Portola Is a Prevailing Party 26 The law is clear that “a favorable ruling on the merits is not a necessary predicate to find 27 that a defendant has prevailed.” Amphastar Pharm. v. Aventis Pharma SA,

(9th 1 Cir. 2017) (quoting CRST Van Expedited Inc.,

) (dismissal for lack of subject 2 matter jurisdiction is “a significant victory and permanently changes the legal relationship of the 3 parties”). Every district court within the Ninth Circuit that has considered this issue post- 4 Amphastar has concluded that a defendant who obtains an order dismissing an ADA claim for lack 5 of standing is a prevailing party under the statute. See Rutherford v. Evans Hotels, LLC, No. 18- 6 CV-435 JLS (MSB),

, at *3 (S.D. Cal. May 14, 2021); Strojnik v. 1017 7 Coronado, Inc., No. 19-CV-02210-BAS-MSB,

, at *3 (S.D. Cal. Jan. 13, 2021); 8 Advocs. for Individuals with Disabilities, LLC v. MidFirst Bank, No. CV-16-01969-PHX-NVW, 9

, at *5 (D. Ariz. Jul. 24, 2018). The Court agrees that Portola has “fulfilled its 10 primary objective” of obtaining dismissal of Mr. Strojnik’s claims and is the prevailing party. See 11 Amphastar,

(quoting CRST,

). 12 B. Whether the Action Was Frivolous 13 Mr. Strojnik cites no authority for his contention that his claims cannot be found 14 “frivolous, unreasonable, or without foundation” because the Court did not reach the merits of his 15 claims. A decision on the merits is not a prerequisite for a finding that the action was frivolous or 16 baseless. See, e.g., Strojnik v. 1017 Coronado, Inc.,

, at *1, *4. Rather, the 17 Court must consider whether Mr. Strojnik “had no reasonable foundation on which to bring the 18 suit” and whether he “knew or should have known that the Court would not have jurisdiction.” 19 See Amphastar,

. 20 Mr. Strojnik has a well-documented history of filing ADA claims with broad, non-specific 21 allegations, almost all of which have been dismissed for lack of standing or failure to state a claim. 22 See Rutherford,

, at *4–5 (summarizing dismissed cases); Strojnik v. 1017 23 Coronado, Inc.,

, at *3–4 (summarizing dismissed cases). In Strojnik v. IA 24 Lodging Napa First LLC, No. 19-cv-03983-DMR,

, at *10–13 (N.D. Cal. Jun. 25 1, 2020), Judge Ryu of this district reviewed all of the 114 cases that had been filed by Mr. 26 Strojnik in California district courts and found that his “litigation tactics are frivolous and 27 harassing.”

. In particular, Judge Ryu noted that “despite being on notice from multiple 1 Strojnik consistently fails to establish that an alleged barrier relates to his disability and so 2 repeatedly fails to allege Article III standing.

at *10–12; see also Strojnik v. Orangewood 3 LLC, No. 8:19-cv-00946-DSF-GJS, ECF 43, at 7–18 (C.D. Cal. Jan. 22, 2020), aff’d,

App’x 783 (9th Cir. Nov. 17, 2020); Strojnik v. Four Sisters Inns, Inc., No. 19-cv-2991,

6700939, at *3 (C.D. Cal. Dec. 9, 2019); Strojnik v. Pasadena Robles Acquisition, LLC, No. 19- 6 cv-2067, ECF 23, at 4 n.1 (C.D. Cal. Aug. 14, 2019), aff’d,

(9th Cir. Apr. 15, 7 2020). 1 8 Mr. Strojnik’s repeated failure to file pleadings that adequately allege standing support a 9 finding that his similar conduct in this case demonstrates not only that he had no reasonable basis 10 to allege an injury-in-fact that would support Article III standing but also that he knew or should 11 have known that he lacked standing. His action raised no issues that had not already been clearly 12 resolved by prior case law. Accordingly, the Court concludes that Mr. Strojnik’s claims were 13 frivolous, unreasonable, and without foundation, and that Portola is entitled to an award of 14 attorneys’ fees. 15 C. Attorney’s Fees Request 16 Portola requests an award of the fees incurred by its counsel, Philip Stillman, as of the date 17 of the motion in the amount of $13,122.00, plus an additional $1,000 for an estimated two hours 18 spent preparing the reply brief in support of his fees motion and preparation for oral argument. 19 Dkt. No. 30 at 18; Dkt. No. 30-2 (Stillman Decl.) ¶ 19. Thus, in total Portola seeks $14,122.00 in 20 fees. As noted, Mr. Strojnik argues that Portola is not entitled to a fee award, but he does not 21 object to the amount of fees claimed. See Dkt. No. 33. 22 The calculation of a reasonable fee award is a two-step process. Fischer v. SJB-P.D., Inc., 23

(9th Cir. 2000). First, a court begins by calculating the “lodestar figure,” or 24 1 Judge Bashant in the Southern District of California observed that on December 10, 2019, less 25 than one month after the complaint in the instant action was filed, Mr. Strojnik “walk[ed] into a courtroom unassisted by a wheelchair.” Strojnik v. 1017 Coronado, Inc.,

, at *3. 26 Judge Bashant also noted that an examiner had concluded Mr. Strojnik “ambulates relatively well with a very slight limp and has an erect posture.”

These findings are consistent with the 27 Court’s earlier conclusion that Mr. Strojnik could not allege standing even if given leave to 1 presumptive award, by multiplying the hours reasonably spent on the litigation by the attorney’s 2 reasonable hourly rate. See

(citing Hensley v. Eckerhart,

(1983)). Second, a 3 court may enhance or reduce the lodestar figure based on the factors articulated in Kerr v. Screen 4 Extras Guild, Inc.,

(9th Cir. 1975), that were not subsumed in the initial lodestar 5 determination.

“A strong presumption exists that the lodestar figure represents a reasonable 6 fee, and therefore, it should only be enhanced or reduced in rare and exceptional cases.”

at n.4 7 (internal quotation marks omitted). 8 1. Reasonable Hourly Rate 9 “In determining a reasonable hourly rate, the district court should be guided by the rate 10 prevailing in the community for similar work performed by attorneys of comparable skill, 11 experience, and reputation.” Chalmers v. City of Los Angeles,

, 1210–11 (9th Cir. 12 1986), reh’g denied, amended on other grounds,

(9th Cir. 1987) (citing Blum v. 13 Stenson,

, 895 n.11 (1984)). “Generally, the relevant community is the forum in 14 which the district court sits.” Barjon v. Dalton,

(9th Cir. 1997). The fee 15 applicant has the burden of producing evidence, other than declarations of interested counsel, that 16 the requested rates are in line with those prevailing in the community for similar services by 17 lawyers of reasonably comparable skill, experience, and reputation. Blum,

n.11. 18 Mr. Stillman states that he has practiced in civil litigation for over 30 years, although he 19 does not describe the extent of his experience with disability rights litigation. See Dkt. No. 30-2 20 ¶ 13. Several judges in this district have concluded that an hourly rate of $475-$750 per hour is 21 reasonable for counsel with 20 years or more experience practicing in the area of disability rights. 22 Johnson v. Baird Lands, Inc., et al., No. 18-cv-05365-VKD,

, at *2 *3, *5 (Jul. 23 8, 2020) (in a “relatively simple” matter, determining a reasonable hourly rate of $475 for an 24 attorney with 20 years of experience in disability litigation); Civ. Rts. Educ. And Enforcement Ctr. 25 v. Ashford Hosp. Tr., Inc., No. 15-cv-00216-DMR, at *5 (N.D. Cal. Mar. 22, 2016) (in a complex 26 disability rights class action, determining a reasonable hourly rate of $750 for an attorney with a 27 total of 25 years of experience); Rodgers v. Claim Jumper Rest., LLC, No. 13-CV-5496-YGR, 1 for an attorney with 20 years of experience, eight of which were in disability litigation). While 2 Mr. Stillman does not detail his experience in disability litigation, his rate of $550 per hour falls 3 within the range of rates applied in these cases. Further, this case arguably required greater skill 4 and experience to litigate successfully than the typical ADA case. Here, Portola defended the 5 action by challenging Mr. Stojnik’s Article III standing and responded to Mr. Strojnik’s post- 6 judgment motions. The Court notes that another judge of this district recently concluded that Mr. 7 Stillman’s rate of $550 was reasonable in a similar case that required the same kind of work as in 8 the instant case. See Strojnik v. The Inn at Jack London Square, LLC, No. 20-cv-01289-SBA 9 (TSH), ECF 29, at 6–8 (N.D. Cal. Jan. 28, 2021), report and recommendation adopted, No. 20-cv- 10 01289 SBA, ECF 33 (N.D. Cal. Apr. 19, 2021). 11 For these reasons, the Court concludes that in this case Portola’s counsel’s hourly rate of 12 $550 is reasonable for the work performed. Moreover, Mr. Strojnik does not object to this rate. 13 2. Hours Reasonably Expended 14 Portola relies on Mr. Stillman’s billing records which reflect that Mr. Spillman spent 23.84 15 hours working on the matter. Mr. Strojnik does not dispute the number of hours. However, the 16 Court has an independent duty to ensure that the number of hours supporting the fee request are 17 reasonable. See, e.g., Gates v. Deukmejian,

(9th Cir. 1992). 18 Here, Mr. Stillman provided detailed billing records showing that the 23.84 hours spent 19 defending this action are reasonable. See Dkt. No. 30-4 at 1–2. Mr. Stillman asserts that he 20 “anticipate[s] requiring an additional two hours at $550 per hour to prepare a Reply memorandum 21 and prepare for any hearing on this Motion, for an additional $1,100.” Dkt. No. 30-2 ¶ 19. As the 22 Court did not hold a hearing on the motion, the Court allows an additional hour for Mr. Stillman’s 23 work on the reply brief, for a total of 24.84 hours worked. 24 3. Final Lodestar Amount 25 Multiplying the reasonable hourly rate and the hours reasonably expended yields a lodestar 26 amount of $13,662. 27 IV. CONCLUSION For the foregoing reasons, the Court grants Portola’s motion for attorney’s fees.” The 2 Court awards defendant Portola $13,662 in attorney’s fees. 3 IT IS SO ORDERED. 4 Dated: September 14, 2021 5 6 □□ 7 veoh K. DEMARCHI g United States Magistrate Judge 9 10 ll a 12

13 14

15 16 € = 17 6 Zz 18 19 20 21 22 23 24 25 26 27 28 > Because the Court finds attorney’s fees may be awarded under the ADA, it does not consider whether sanctions are warranted under Rule 11,

, or this Court’s inherent power.