UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTIN VOGEL, No. 16-55229 Plaintiff-Appellant, D.C. No. v. 2:14-cv-04609-SJO-SH

HARBOR PLAZA CENTER, LLC, OPINION Defendant-Appellee.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted October 2, 2017* Pasadena, California

Filed June 25, 2018

Before: Andrew J. Kleinfeld, Susan P. Graber, and Morgan Christen, Circuit Judges.

Opinion by Judge Graber; Concurrence by Judge Christen; Dissent by Judge Kleinfeld

* The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). 2 VOGEL V. HARBOR PLAZA CENTER

SUMMARY**

Attorneys’ Fees

The panel vacated the district court’s award, pursuant to a local rule, of attorneys’ fees to the plaintiff following the entry of a default judgment in an action brought under the Americans with Disabilities Act.

The panel held that the plaintiff was entitled to a reasonable attorney’s fee under 42 U.S.C. § 12205 because he was the prevailing party on his ADA claim. The district court declined to apply the lodestar approach. Instead, it interpreted the schedule of fees described in the Central District’s Local Rule 55-3 as prescribing a presumptively correct award of fees. The panel read the local rule to require a different procedure. The panel concluded that when a party seeks a fee in excess of the schedule and timely files a written request to have the fee fixed by the court, then the court must hear the request and award a “reasonable” fee. The court must calculate a “reasonable” fee in the usual manner, without using the fee schedule as a starting point. The panel remanded the case to the district court for reconsideration.

Concurring, Judge Christen wrote that she joined the court’s opinion, which was consistent with the Supreme Court’s longstanding rule that fees are awarded to prevailing parties in civil rights cases, including ADA cases, according to the lodestar method. She wrote separately to clarify that, in her view, the correct method for calculating fees in an

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VOGEL V. HARBOR PLAZA CENTER 3 ADA lawsuit ending in default judgment in the Central District of California should not hinge on whether a prevailing party opts out of the local fee schedule.

Dissenting, Judge Kleinfeld wrote that the district court properly used the local rule’s fee schedule for default judgments, rather than the lodestar, as the starting point and acted within its discretion to reject an increase.

COUNSEL Scottlynn J. Hubbard, Disabled Advocacy Group APLC, Chico, California, for Plaintiff-Appellant. No appearance for Defendant-Appellee. 4 VOGEL V. HARBOR PLAZA CENTER

OPINION GRABER, Circuit Judge:

In this action brought under the Americans with Disabilities Act of 1990 (“ADA”), Plaintiff Martin Vogel timely appeals the district court’s award of $600 in attorney’s fees following the entry of a default judgment. Defendant Harbor Plaza Center, LLC, originally filed an answer and took other actions but, before trial, failed to appear. The district court eventually struck the answer, entered a default judgment against Defendant, and awarded fees pursuant to a local rule. By eschewing the ordinary considerations that apply when calculating fees in ADA cases