Judge: Andrew E. Cooper, Case: 22CHCV00047, Date: 2024-08-13 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 22CHCV00047    Hearing Date: August 13, 2024    Dept: F51

MOTION FOR ATTORNEY FEES

Motion Filed: 3/6/24

MOVING PARTY: Plaintiff Jodi Brintnell (“Plaintiff”)

RESPONDING PARTY: Defendants Cherie McGraham, individually dba Smokehouse on Main; and Cheriebee Incorporated dba Smokehouse on Main (collectively, “Defendants”) 

NOTICE: OK

RELIEF REQUESTED: An order awarding Plaintiff attorney fees and costs in the amount of $28,768.00.

TENTATIVE RULING: The motion is granted in part. Plaintiff is awarded $18,471.25 in attorney fees and costs.

Plaintiff is reminded that all documents “must be text searchable when technologically feasible without impairment of the document's image.” (CRC 2.256(b)(3).) Plaintiff is further reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

This is an employment action in which Plaintiff alleges that she was an employee of Defendants between February and June 2021, during which time Defendants failed to compensate Plaintiff for meal and rest breaks.

On 1/19/22, Plaintiff filed her complaint, alleging against Defendant the following causes of action: (1) Failure to Pay Minimum Wage; (2) Failure to Pay Overtime Wages; (3) Failure to Provide Meal Periods; (4) Failure to Provide Rest Periods; (5) Failure to Provide Accurate Itemized Wage Statements; (6) Failure to Reimburse Business Expenses; (7) Failure to Pay All Wages Owed Upon Termination; (8) Failure to Provide Paid Sick Leave; (9) Improper Wage Deductions from Gratuities; and (10) Unfair Business Practices. On 3/10/22 and 6/17/22, Defendants filed their answers.

On 11/23/23, the parties executed a settlement offer pursuant to Code of Civil Procedure section 998, settling entire lawsuit by Defendants paying Plaintiff $7,500.00, plus attorney fees, costs, and expenses either by written stipulation or by noticed motion. (Ex. 1 to Decl. of Svetlana Lukyanov, pp. 1–2.)

On 3/6/24, Plaintiff filed the instant motion. On 3/12/24, Plaintiff filed a Notice of Conditional Settlement of the entire case. On 5/13/24, Defendants filed their opposition. On 2/13/24, Plaintiff filed her reply.

On 5/24/24, the Court continued the instant motion and requested further clarification from the parties. On 6/7/24, each of the parties filed their supplemental briefs.

ANALYSIS

A.    Right to Recovery

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, the parties stipulated that “Plaintiff’s counsel, Bleau Fox, a P.L.C., shall be entitled to bring a motion for reasonable attorney’s fees and costs of suit incurred in prosecuting this action on behalf of Plaintiff, to be determined by the Court, unless the Parties are able to otherwise stipulate to an agreed upon amount.” (Ex. 1 to Lukyanov Decl., p. 2.) Additionally, Plaintiff asserts, and Defendants do not contest, that Plaintiff is entitled to recover reasonable attorney fees pursuant to Labor Code sections 226, subdivision (e)(1); 218.5, subdivision (a); and 1194, subdivision (a). Accordingly, the Court finds that Plaintiff is entitled to recover reasonable attorney fees, costs, and expenses as authorized by both statute and contract.

B.     Attorney Fees Incurred

“The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) In determining a reasonable fee award, the Court begins with the lodestar method of calculation, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.¿(Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096.)

Here, Plaintiff seeks to recover $25,180.00 in attorney fees, encompassing 73.18 hours of her attorneys’ time, billed at the following rates:

(Ex. 3 to Lukyanov Decl.)[1] Plaintiff also seeks to recover an additional $2,250.00 for her counsel  to review Defendant’s opposition, draft her reply, and appear for the instant hearing. (Pl.’s Suppl. Brief 5:19–21.)

1.      Counsel’s Hourly Rate

When determining a reasonable hourly rate, courts consider whether the stated rates “are within the range of reasonable rates charged by and judicially awarded [to] comparable attorneys for comparable work.” (Children's Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 783.) Lawyers who work on a contingency fee basis may seek heightened attorney fees because of the inherent contingent risk associated with their cases. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [“a contingent fee contract, since it involves a gamble on the result, may properly provide for a larger compensation than would otherwise be reasonable.”].)

Here, Plaintiff asserts that her counsel’s hourly “rates are not only within the range of rates charged by other litigators with comparable experience in the highly specialized field of wage-and-hour litigation, but they are rather toward the low end. Private attorneys in the Los Angeles/Orange County metropolitan area with comparable experience typically charge on average over $500.00 per hour.” (Pl.’s Mot. 8:23–26.)

In opposition, Defendants argue that Plaintiff’s counsel’s hourly rates are unreasonably high, specifically that “Plaintiff is demanding that Defendants pay for legal services by Ms. Lukyanov – a 2019 Bar admittee - at the same hourly rate as Ms. Childress (a 2009 Bar admittee) and Mr. Bleau (a 1991 Bar admittee). Plaintiff offers no explanation or justification for this excessively high hourly rate.” (Defs.’ Opp. 6:16–19.)

The Court notes that neither party submits any further evidence supporting their arguments relating to the reasonableness of Ms. Lukyanov’s hourly billing rate. As such, the Court finds it reasonable to reduce Ms. Lukyanov’s hourly billing rate to $350.00 per hour, for a total reduction of $3,880.00.

2.      Hours Expended

Plaintiff seeks to recover attorney fees for the 65.75 hours expended by her attorneys on this matter, and proffer an itemized list of time entries detailing her attorneys’ work on the matter. (Ex. 3 to Lukyanov Decl.)

In addition to the attorney hourly billing rate, Defendants challenge the following specific entries in Plaintiff’s attorneys’ proffered time log: (1) excessively billed time entries; and (2) time incurred in preparing Plaintiff’s settlement conference brief. (Def.’s Opp. 3:9–4:20.)

a.                  Excessively Billed Entries

Defendants argue that the fees for the following time entries should be reduced as “inefficient and excessive”:

·         3.5 hours spent drafting Plaintiff’s complaint;

·         2 hours spent attempting to strike Defendants’ answer;

·         11 hours of paralegal work responding and propounding discovery;

·         1.5 hours spent reviewing Defendants’ document production;

·         2.0 hours reviewing and revising the parties’ settlement agreement;

·         0.2 hours billed for each e-mail sent in the case; and

·         14.6 hours drafting the instant motion.

The Court notes that Defendants do not provide further explanation or argument as to how or why the time incurred by Plaintiff’s counsel for these items is excessive and/or unreasonable. In opposition, Plaintiff maintains that the time billed was reasonable based on the circumstances of the case. (Pl.’s Reply 2:22–4:14.)

Based on the foregoing, the Court finds it reasonable to reduce the fee award for time incurred in drafting Plaintiff’s complaint to 2.0 hours; time spent propounding and responding to discovery to 3.0 hours; and time spent preparing the instant motion to 5.0 hours, for a total reduction of $5,945.00.

b.                  Settlement Conference Brief

Defendants further argue that Plaintiff should not be allowed to recover attorney fees incurred in preparing Plaintiff’s settlement conference brief. Defendants assert that “Plaintiff’s counsel billed seven and four-tenth (7.4) hours to draft a settlement conference Brief that was not used at the settlement conference. While a review of the docket reflects that Plaintiff filed a settlement conference brief one day before the June 2 settlement conference, it does not appear that brief was in any way used to support settlement discussions or otherwise move this case towards settlement/completion.” (Defs.’ Opp. 5:19–23.)

In reply, Plaintiff argues that “even if somehow the brief was not received by the mediator (which might be untrue and it is unclear how Defendant’s attorney is aware of this fact), this happened due to technical issues in the court filing system and was not Plaintiff’s fault. Plaintiff’s attorney, Thomas P. Bleau, used this brief in preparation for the conference and settlement discussions.” (Pl.’s Reply 3:4–9.)

Based on the foregoing, the Court sees no basis to strike Plaintiff’s attorney fees incurred in preparing her settlement conference brief, which Defendants concede was filed with the Court.

C.    Costs

Plaintiff asserts that she incurred costs and expenses totaling $1,338.75, which encompasses research fees, filing fees, process server fees, and courtesy copy delivery fees. (Ex. 4 to Lukyanov Decl.) The Court notes that Defendants do not object to any of the costs claimed. Accordingly, the Court grants Plaintiff’s motion to recover $1,338.75 in costs and expenses.

CONCLUSION

The motion is granted in part. Plaintiff is awarded $18,471.25 in attorney fees and costs.