Brian Whitaker v. Smb Group, a California limited partnership;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN WHITAKER,
Plaintiff-Appellant,
v.
SMB GROUP, a California limited
partnership; et al.,
Defendants-Appellees.
No. 22-55668
D.C. No.
2:19-cv-06877-MWF-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted August 22, 2023
Pasadena, California
Before: RAWLINSON and BRESS, Circuit Judges, and ZOUHARY,** District
Judge.
Appellant Brian Whitaker (“Whitaker”)—represented by the Center for
Disability Access (“CDA”)—appears before this Court a second time, challenging
the reduction of hourly rates in the district court award of attorney fees. We review
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
SEP 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
de novo a district court compliance with a mandate on remand, and its award of
attorney fees for abuse of discretion. Hall v. City of Los Angeles, 697 F.3d 1059,
1066 (9th Cir. 2012); Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 797 (9th
Cir. 2017). Having jurisdiction under 28 U.S.C. § 1291, we affirm.
This Court’s remand mandate in SMB I was clear. See Whitaker v. SMB Grp.,
No. 20-55838, 2021 WL 5150045 (9th Cir. Nov. 5, 2021). It required the district
court to explain its reduction to counsel’s requested rates. Id. at *1. We identified
the following factors for the court to consider: “the complexity of the case, the type
of work involved, rates for [] lawyers of comparable skill in the relevant community,
whether the legal work was performed by lawyers at the appropriate levels of
seniority, or other relevant factors.” Id. at *2. The district court complied, reviewing
the Kerr factors, as well as the quick resolution of the case and the lack of
complexity. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975),
abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992).
Although Whitaker challenges the court’s application of the Kerr factors on
several grounds, none support a finding of abuse of discretion. And the argument
that adjustments to the lodestar may only be made in “rare or exceptional”
circumstances is without support. Rather, it is well established a court has discretion
to adjust the lodestar upward or downward. See Moreno v. City of Sacramento, 534
F.3d 1106, 1111 (9th Cir. 2008); Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983).

-- 2 of 4 --

3
The district court adequately justified its reduction of CDA’s requested hourly
rates. For example, the court considered, as one of several factors, that the fees CDA
sought ($20,459) significantly overshadowed the settlement it obtained ($4,000).
Whitaker argues this is improper, but Kerr expressly lists “the amount involved and
the results obtained” as a factor a district court may consider when assessing an
upward or downward departure from the lodestar. 526 F.2d at 70. The district court
properly did not treat this factor as dispositive. Whitaker also challenges the district
court conclusion that CDA’s strategy of “serial ADA litigation,” in which it employs
an “assembly-line approach,” weighs in favor of lower attorney fees. Here again,
the court permissibly reached this conclusion based on the facts of this case. See
Moreno, 534 F.3d at 1115 (listing “[t]he difficulty and skill level of the work
performed” as relevant to the district court’s decision to deviate from the lodestar).
At oral argument, Whitaker’s counsel argued strenuously that the court
confused efficiency with simplicity, contending he should not be reprimanded for
perfecting his craft. Yet, he failed to show how the attorneys in this specific case
performed anything but routine tasks, requiring minimal specialized skill. This was
a straightforward case that lacked discovery, substantive motion practice, or trial
preparation. The district court was entitled to conclude that it required little “time
and labor,” favoring a rate reduction. Kerr, 526 F.2d at 70.

-- 3 of 4 --

4
Lastly, CDA asserts that bias in the arena of ADA litigation has led to punitive
fee decisions that threaten the practice. No record evidence suggests animus, and
the court faithfully applied and followed Kerr, Hensley, and Moreno.
AFFIRMED.

-- 4 of 4 --