John Ho v. Frederick Russi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN HO, an individual, No. 20-55915
Plaintiff-Appellant, D.C. No.
8:20-cv-00446-DOC-DFM
v.
FREDERICK RUSSI, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted June 6, 2022
Pasadena, California
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
John Ho appeals the district court’s partial fee award totaling $540,1 roughly
14 percent of the requested $3,960. We have jurisdiction under 28 U.S.C. § 1291and conclude that the district court erred because it failed to adequately explain how
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
1
Ho claims to have received only $500 in attorney’s fees in his brief before the court.
Because the district court’s order awarded $540, we use that number.
it arrived at the reduced fee award.2
After granting Ho’s application for default judgment on an Americans with
Disabilities Act claim, the district court addressed Ho’s request for attorney’s fees.
Under the “lodestar method,” which is the “customary method of determining fees,”
Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), as amended, 108
F.3d 981 (9th Cir. 1997), the district court was required to calculate the attorney’s
fees to which Ho is entitled by determining “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Vogel v. Harbor
Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018) (quoting Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)). Where the district court determines that the reasonable
number of hours worked is less than 90 percent of what the plaintiff asserts, “a more
specific articulation of the court’s reasoning is expected.” Moreno v. City of
Sacramento, 534 F.3d 1106, 1111–12 (9th Cir. 2008). Conclusory or vague
assertions that the lawyer’s work was duplicative or excessive are insufficient. See
id. at 1112–13.
Ho’s billing records showed that his attorney worked 9.9 hours at a $400/hour
rate, for a total of $3,960. The district court rejected this calculation and instead
awarded $540 in fees, stating that “[t]he Court finds that the ten hours billed for this
2
The remaining matters in this appeal are addressed in an opinion published
simultaneously with this memorandum disposition.
2
matter are unreasonable given the quality of the complaint and motion for default
judgment.” This was error because the district court failed to determine the
reasonable number of hours for this matter, or why $540—as opposed to any other
figure—was proper. See Stanger v. China Elec. Motor, Inc., 812 F.3d 734, 739 (9th
Cir. 2016) (per curiam) (vacating and remanding fee award because “the record lacks
any explanation as to why the lodestar was reduced by 422 hours, as opposed to any
other number of hours”); Moreno, 534 F.3d at 1111 (“When the district court makes
its award, it must explain how it came up with the amount.”).
The district court’s fee award is therefore VACATED, and the case is
REMANDED for the entry of a new fee award consistent with this memorandum
disposition.
3