Judge: Anne Richardson, Case: 19STCV22997, Date: 2023-10-10 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV22997    Hearing Date: October 31, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Colbert L. Cobene (deceased) and Ronald Holmes—individuals within the “age” protected class of the Fair Employment and Housing Act (FEHA)—sued Defendant Midnight Mission, a business entity, exact form unknown, and Does 1 through 100 pursuant to a July 1, 2019 Complaint alleging claims of (1) Discrimination Based on Age in Violation of FEHA (Cal. Govt. Code § 12940(a)), (2) Wrongful Discharge in Violation of Public Policy, (3) Failure to Prevent Discrimination (Violation of Government Code §12940 et seq.).

The claims arose from allegations that, among other things, Plaintiffs were employed by Midnight Mission, experienced age discrimination during the employment, and were subsequently terminated from that employment in violation of public policy. Examples of discrimination alleged by Plaintiff Holmes included being placed on the graveyard shift, being put on probation, being repeatedly written up, being micromanaged, being accused of things that were not his fault, and being terminated.

Relevant Procedural History

In 2019, Plaintiff Cobene died. On November 30, 2020, the Court granted a motion that permitted his surviving wife and son to substitute in as Plaintiffs and dismiss this action on behalf of Plaintiff Cobene’s estate.

Between late June and mid July 2023, a jury trial was held in this action, as between Plaintiff Holmes and Midnight Mission.

On July 13, 2023, the jury returned a special verdict in favor of Plaintiff Holmes on all causes of action and awarding $340,752 in past economic loss damages and $1,000,000 in noneconomic loss damages.

On July 31, 2023, Plaintiff Holmes filed a proposed judgment.

On August 2, 2023, the Court signed and entered judgment.

That same day, the Clerk noticed entry of judgment on the parties.

On August 4, 2023, Plaintiff Holmes filed a stipulation and order by the parties for a temporary stay of enforcement of the money judgment in this action. The judgment was stayed “until 10 days after the last day on which a notice of appeal may be filed in this matter ….”

On August 7, 2023, the Court signed and entered the stipulation.

On August 17, 2023, Midnight Mission noticed its intent to move for a new trial and to move for judgment notwithstanding the verdict.

On August 18, 2023, Midnight Mission noticed the association of counsel Fisher & Phillips, LLP as counsel of record in association with Frank Revere of Revere & Wallace.

On September 7, 2023, Midnight Mission filed and served its motions for new trial and for judgment notwithstanding the verdict.

On September 19, 2023, Plaintiff Holmes opposed both motions in a combined opposition.

On September 25, 2023, Midnight Mission made separate replies in favor of its two motions.

On October 10, 2023, the Court heard oral arguments on Midnight Mission’s motions and took the ruling under submission.

On October 11, 2023, the Court conditionally granted the motion for a new trial, unless Plaintiff accepted a remittitur reducing the verdict for economic damages only to $54,713, and otherwise denied both motions. Plaintiff agreed to accept the reduced economic damages later that day.

Motion Before the Court

On August 9, 2023, Plaintiff Holmes filed a memorandum of costs.

On October 2, 2023, Plaintiff Holmes moved for attorneys’ fees and costs in this action.

On October 18, 2023, Defendant Midnight Mission opposed the fees and costs motion.

On October 25, 2023, Plaintiff Holmes file errata notices regarding his moving papers.

On October 26, 2023, Plaintiff Holmes replied to the opposition.

The motion for attorneys’ fees and memorandum of costs are now before the Court.

Motion for Attorneys’ Fees and Costs

Preliminary Note

On August 7, 2023, the Court signed a stipulation and order by the parties agreeing to staying the judgment “until 10 days after the last day on which a notice of appeal may be filed in this matter ….” (See 8/7/23 Stipulation and Order [stay based on Code Civ. Proc., § 918, subd. (b)].)

A notice of appeal may be filed no later than the earliest of various dates: (1) 60 days after notice of entry of judgment by the Clerk; (2) 60 days after notice of entry of judgment by a party; or (3) 180 days after judgment. (Cal. Rules of Court, rule 8.104, subd. (a)(1)(A)-(C).)

However, where a motion for new trial is filed, the deadline for the notice to appeal is extended to, for example, 30 days after the prevailing party at trial accepts a remittitur in damages. (Cal. Rules of Court, rule 8.108, subd. (b)(2)(A).) Where a JNOV motion is filed and denied, the deadline to notice an appeal is the earliest of (1) 30 days after notice of the denial by the Clerk or any party, (2) 30 days after denial by operation of law, or (3) 180 days after judgment. (Cal. Rules of Court, rule 8.108, subd. (d)(1)(A)-(C).)

Here, on October 11, 2023, the Court granted the motion for new trial only as to a remittitur in damages and denied the JNOV motion. That same day, Plaintiff Holmes served a notice of the October 11th ruling and noticed an acceptance of the Court’s remittitur.

Thus, the deadline to appeal the judgment in this action is 30 days from October 11, 2023, i.e., Friday, November 10, 2023. (See Code Civ. Proc., §§ 1010.6, subd. (a)(3)(B)(iii), 1013, subds. (a), (c), (e) [extensions for time to act based on service by email, mail, overnight delivery, and fax not applicable to noticing an appeal].)

Moreover, per the August 7, 2023 stipulation, judgment is stayed until 10 days after the last day to notice appeal (Friday, November 10, 2023), i.e., stayed until Monday, November 20, 2023.

Thus, to the extent that any fees and costs are awarded here, because those fees and costs are based on the August 3, 2023 judgment, an order awarding these fees and costs will also be stayed until November 20, 2023.

Legal Standard

A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) Attorney’s fees are also recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) In civil actions brought under the FEHA, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. (Gov. Code, § 12965, subd. (c)(6).)

The Court begins this inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant multiplier factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, disagreed with on other grounds in In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236, fn. 7 [disagreement as to statement of decision requirements].) The Court has broad discretion to determine the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)

Order Granting Fees and Costs: GRANTED.

Plaintiff Ronald Holmes seeks an award of $210,067 in base attorneys’ fees, a 2.0 attorneys’ fees multiplier enhancement award of an additional $210,067 (for a total of $420,134) plus $13,971.61 in costs pursuant to Government Code section 12965, subdivision (c)(6). (Mot., pp. 3-4; see Reply, p. 2 [agreeing to reduction in lodestar from $217,667 to $210,067 based on one duplicative entry of 9.5 hours on June 28, 2023].)

I. Reasonable Fees

Plaintiff Ronald Holmes seeks recovery of fees based on work expended by various attorneys and a paralegal as follows:

(1) Timothy B. Sottile at a rate of $800 per hour (partner at Plaintiff’s counsel’s firm, Sottile Baltaxe);

(2) Michael F. Baltaxe at a rate of $800 per hour (partner at Sottile Baltaxe);

(3) Payam I. Aframian at a rate of $450 per hour (associate no longer working for Sottile Baltaxe);

(4) Victoria Felder at a rate of $300 per hour (associate no longer working for Sottile Baltaxe);

(5) Jennifer Zide at a rate of $575 per hour (associate no longer working for Sottile Baltaxe);

(6) Nicole C. Burgos Romero at a rate of $250 per hour (associate currently working for Sottile Baltaxe);

(7) Charles Casado at a rate of $250 per hour (associate no longer working for Sottile Baltaxe);

(8) Robert Golde at a rate of $525 per hour (associate currently working for Sottile Baltaxe); and

(9) Thomas Still at a rate of $100 per hour (paralegal currently working for Sottile Baltaxe).

(Mot., p. 6; see Mot., Comp. of Decls., Ex. 1, Sottile Decl., ¶ 25.)

The rates are supported by declarations from Timothy B. Sottile, Michael F. Baltaxe, Nicole C. Burgos Romero, and Joshua Milon. (See Mot., Comp. of Decls, Ex. 1, Sottile Decl., ¶¶ 4-6, 8-10, 11-12, 24-25; Sub-Exs. A-G [verified time records]; id. at Ex., Ex. 2, Baltaxe Decl., ¶¶ 11-31, Sub-Ex. A [verified time records]; id. at Ex. 3, Burgos Romero Decl., ¶¶ 2-7, 9, Sub-Ex. A [verified time records]; id. at Ex. 4, Milon Decl., ¶¶ 1-37 [declaration from third-party attorney supporting the fee rates requested by Plaintiff].)

A review of the opposition shows that the fee rates (and costs) were not contested by Midnight Mission, which only disputed the reasonableness of hours expended on this action and the appropriateness of an enhancement award. (Opp’n, pp. 2-7.)

The reply notes this failure to oppose the fee rates. (Reply, p. 1 [“It appears that the Defendants accepts the reasonableness of the hourly rates requested by Plaintiff in his motion for attorney[s’] fees”].)

The Court finds in favor of Plaintiff on this issue.

The Court makes its determination based on the educational and/or professional background provided by the Sottile, Baltaxe, and Burgos Romero declarations, as well as prevailing market rates in the Los Angeles area and the Court’s own experience.

II. Reasonable Hours

In his motion, Plaintiff Holmes makes a brief argument in favor of reasonableness in hours expended by counsel. In full, Plaintiff Holmes argues that “[t]he time expended by Holmes’ counsel, as well as descriptions of work performed, is set forth in the timesheets attached to the Declarations of Timothy B. Sottile, Michael F. Baltaxe[,] and Nicole C. Burgos Romero,” for which reason Plaintiff “Holmes therefore asks that the Court find that the reasonable time spent is 376.9 hours.” (Mot., pp. 5-6; see Mot., Comp. of Decls., Ex. 1, Sottile Decl., ¶ 25 [breakdown of rates, hours, and totals for each attorney’s and paralegal’s work], Sub. Exs. A-G [verified time records for counsel Aframian, Zide, Felder, Casado, Golde, Still (paralegal), and Sottile]; id. at Ex. 2, Sub-Ex. A [verified time records for Baltaxe]; id. at Ex. 3, Sub-Ex. A [verified time records for Burgos Romero].)

In opposition, Midnight Mission argues that the hours requested should be reduced. The reasons provided by Midnight Mission are that the billing entries in the verified time records are vague, do not describe the tasks performed by counsel, are excessive, and contain block billing, particularly in the form of quarter-hour-plus increments. Midnight Mission specifically challenges billings related to Payam Aframian, Jennifer Zide, Charles Casado, Victoria Felder, Timothy Sottile, and Nicole Burgos Romero, including one instance of apparent duplicative billing by Timothy Sottile. Midnight Mission argues that a $36,522.50 reduction is merited based on this billing. In conclusion, Midnight Mission argues that $7,200 should be reduced from the base fees request based on duplicative billing, and an additional 20% of the remainder should be reduced based on block billing and based on a 20% block billing reduction set out in the Ninth Circuit’s Welch v. Metro Life Ins. Co. (9th Cir. 2007) 480 F.3d 942, 948-949 (Welch). (Opp’n, pp. 2­-4.)

In reply, Plaintiff Holmes argues that the opposition arguments are contradictory, criticizing Plaintiff’s counsel for block billing and padding while simultaneously arguing that counsel did not spend a sufficient amount of time in this action (an argument responsive to the enhancement award position taken by Midnight Mission that the case was not complex). Plaintiff Holmes further argues that the time expended by counsel was proper and advanced the case, such as by developing the case, making filings, conducting discovery, and preparing for trial, with many of the hours expended by counsel being expended before the Court. Plaintiff Holmes agrees, however, that 9.5 hours ought to be reduced from the fees request based on duplicative billing for Timothy Sottile, bringing down the base fees award request to $210,067. (Reply, pp. 1-2.)

The Court finds in favor of Plaintiffs. As an overall matter, the Court finds that a total bill of $210,067 is in fact very low for a case brought under FEHA in the Court’s experience, where it includes all of the pretrial matters including drafting the complaint, discovery, preparation for trial as well as 11 days of trial, post-judgment matters, and the motion for attorney fees.

As to Payam Aframian, Jennifer Zide, Victory Felder, Charles Casado, and Robert Golde, the Court’s review of the verified billing records—which are entitled to deference (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 397)—shows that the tasks described were performed in reasonable time. (Mot., Comp. of Decls., Ex. 1, Sottile Decl., Sub-Exs. A-E.) Moreover, the hours expended by Payam Aframian, Jennifer Zide, Victory Felder, Charles Casado, and Robert Golde are few—four, three, 17, three, and 7.8 respectively—and are shown by the records to have been expended on specific tasks rather than various tasks combined into a single block for billing purposes, undercutting the block billing argument as to these attorneys. (Ibid.; see Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 280 [“Block billing occurs when ‘a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task,’” citation omitted].) Again, even if on the outer edge of reasonability, the above referenced hours were reasonably expended by counsel.

The opposition does not dispute the reasonableness of paralegal Thomas Still’s work, which the Court finds reasonable. (Mot., Comp. of Decls., Ex. 1, Sottile Decl., Sub-Ex. F see Opp’n, p. 4 [Plaintiff Holmes “[s]pecifically” challenges block billing by Payam Aframian, Jennifer Zide, Charles Casado, Victoria Felder, Timothy Sottile, and Nicole Burgos Romero].) Indeed, the Court notes that this individual, a paralegal, who billed $100 per hour, undoubtedly assisted in keeping the overall amount billed to the case quite low.

As to Timothy Sottile, the Court agrees that the billing records are not particularized between time expended on various tasks, thus supporting a finding of block billing. For example, on a number of days attorney Sottile wrote as to time expended on the “Activity” “TBS – prepare for trial,” which accounts for eight billing entries totaling 41.8 hours without explanation as to the specific tasks performed to prepare for trial. Similar entries exist for traveling to and from the Court, conducting trial, and reviewing and summarizing transcripts. (Mot., Comp. of Decls., Ex. 1, Sottile Decl., Sub-Ex. G; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325-1326 [Block billing can exacerbate the vagueness of an attorney’s fees request and support a court’s finding that time entries were inflated and non-compensable].)

            However, “consistent precedent in California cases . . . provide[s] trial courts with the discretion about whether [or not] to penalize block billing.”  (Heritage Pacific Financial v. Monroy (2013) 215 Cal.App.4th 972, 1010, fn. 6. [italics in original; brackets added].) The 20% reduction that was upheld in Welch, supra, 480 F.3d at pp. 948-949, was based on a report that concluded that block billing “may increase time by 10% to 30%.”

            Here, the Court finds that the days for which this block billing occurred were for pre-trial and during trial. The hours requested for the eight days of trial preparation and the eleven days of trial ranged from 4-6.5 hours preparing for trial and ranged from 8-10 hours during trial. Given the quantity of work to be done on any given day of trial, 8-10 hours is very low, including as it must not only the time spent in the courthouse (between about 9:30 and 4:30) but also travel time and preparation for the following day. Preparation time necessarily includes preparing for all of the witnesses, both on direct and on cross, as well as preparing for the Final Status Conference and argument on all the motions in limine, brought by both plaintiff and defendant. A total of 41.8 hours to prepare for trial over 8 days both before and during trial is not an inflated or padded sum, and thus this Court does not find that this is an appropriate case in which to deduct hours solely because of block-billing or rounded hours.

The opposition does not dispute the reasonableness of Michael Baltaxe’s work, which the Court finds reasonable. (Mot., Comp. of Decls., Ex. 2, Baltaxe Decl., Sub-Ex. A; see Opp’n, p. 4 [Defendant “[s]pecifically” challenges block billing by Payam Aframian, Jennifer Zide, Charles Casado, Victoria Felder, Timothy Sottile, and Nicole Burgos Romero].)

Last, as to Nicole Burgos Romero, the Court finds that the hours requested are reasonable. These hours involve no more than four hours on any tasks, where the tasks are sufficiently specific as to the nature of the tasks performed while also involving tasks that could take several hours to complete. (Mot., Comp. of Decls., Ex. 3, Burgos Romero Decl., Sub-Ex. A.)

The Court thus finds that the hours requested for the work of Payam Aframian, Jennifer Zide, Charles Casado, Victoria Felder, Thomas Still, Timothy Sottile, Michael Baltaxe, and Nicole Burgos Romero are reasonable.

III. Enhancement Award

After review, the Court finds that a minimal enhancement award is proper here. (See Mot., pp. 7-10; Opp’n, pp. 5-7; Reply, pp. 3-5.) The Court finds that some of the factors support an enhancement, while others do not. Those factors affirmed by the California Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25, 49 that are relevant here include: 1) the novelty and difficulty of the questions involved; 2) the skill displayed in presenting them; 3) the extent to which the nature of the litigation precluded other employment by the attorneys; and 4) the contingent nature of the fee award. (See also Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399.)

Reviewing those factors, the Court finds that a minimal enhancement of 1.25 is appropriate. The case was not novel or complex, although certainly not an easy case to win, either. Plaintiff’s counsel exercised skill in presenting the matter, as seen by the jury’s verdict and as observed by the Court. There was no showing by Plaintiff’s counsel that the litigation precluded other employment by the attorneys. However, the contingent nature of the fee award is a strong factor supporting a multiplier here, a contingency made all the more risky by the fact that the Plaintiff’s economic damages were low and punitive damages were unavailable.

            “An enhancement of the lodestar amount to reflect the contingency risk is “[o]ne of the most common fee enhancers.’” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399, quoting Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.) “The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. …’ [Citation.] ‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’ [Citations.]” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1217-1218, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132–1133.)

Therefore, the Court grants a 1.25 multiplier to account for the skill demonstrated and contingent risk, for a total of $210,067 x 1.25= $262,583.75.

IV. Costs

Plaintiff seeks $13,971.61 in costs related to prosecuting this action. The costs were sought in an August 9, 2023 memorandum of costs. (See Mot., Comp. of Decls., Ex. 1, Sottile Decl., Ex. H [memo of costs].)

A review of the opposition shows that the costs were not contested by Midnight Mission, which only disputed the reasonableness of hours expended on this action and the appropriateness of an enhancement award. (Opp’n, pp. 2-7.)

The Court finds that these costs are (1) mandatory per the Rules of Court (Cal. Rules of Court, rule 3.1700, subd. (b)(4)) and (2) reasonable in amount ($13,971.61). 

Conclusion

Plaintiff Ronald Holmes’s Motion for Attorneys’ Fees and Costs is GRANTED, in Part, in the amount of $262,583.75 for fees and $13,971.61 in costs.