Tuesday, April 9, 2019
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld the denial of supplemental attorney fees in a case in which the City of Los Angeles agreed in 2016 to pay $1.4 billion over a 30 year period to render its sidewalks fully accessible to persons with mobility disabilities.
A settlement agreement between the class representatives and the city provided, subject to judicial approval, that “the City shall pay to Class Counsel: (i) the sum of $13,300,000 as reasonable attorneys’ fees in this matter; and (ii) the sum of $1,700,000 for costs and expenses”—totaling $15 million. However, District Court Judge Consuelo B. Marshall of the Central District of California on Aug. 24, 2016, pared the award to $10,269,745.07 in attorneys’ fees, and $1,533,751.77 in costs, a total of $11,803,496.84.
Nine months later, the plaintiffs then sought a second “supplemental” award of fees, costs, and expenses, which Marshall denied.
Affirming, a three-judge panel said in yesterday’s memorandum opinion that Marshall “found that Plaintiffs’ counsel had affirmatively and expressly represented to the court, in connection with the first motion, that there would be only one fee application.” The opinion says:
“This finding is supported by the record.”
In light of that finding, the opinion declares, Marshall did not abuse her discretion in denying the second motion for fees.
At oral argument in Pasadena on March 8, Circuit Judge Mark J. Bennett questioned a lawyer for the plaintiffs, Guy B. Wallace of the San Francisco firm of Schneider Wallace Cottrell Konecky Wotkyns LLP concerning this statement in his declaration filed in the District Court:
“The parties agreed that all attorney fees, costs and expenses incurred by Plaintiffs…would be submitted to this Court for resolution by way of the pending Motion.”
That was not a pledge not to seek supplemental fees, Wallace maintained, but was intended as an advisement that the plaintiffs would not be seeking fees in related state litigation. There would, instead, be “one big motion in federal court,” he explained.
He said Marshall had set an April 22, 2016 cut-off as to fees, corresponding to the date of notice to the class, but contended “there was much compensable work to be done after that date.”
No Judicial Estoppel
The lawyer argued that the supposed inconsistency in positions to which Marshall pointed was “insufficient to give rise to judicial estoppel.”
Under the Jan. 8, 2016 settlement, the city agreed to “install, repair and upgrade curb ramps; repair sidewalks and walkways damaged by tree roots; repair broken or uneven pavement; correct non-compliant cross-slopes in sidewalks; install tree gates and missing utility covers; and remediate other inaccessible conditions.”
The Aug. 4, 2010 suit included causes of action under the Americans with Disabilities Act, the Unruh Civil Rights Act, and the California Disabled Persons Act.
The case is Willits v. City of Los Angeles, 17-56445.
Copyright 2019, Metropolitan News Company