Judge: Anne Richardson, Case: 22STCV20645, Date: 2023-04-07 Tentative Ruling

Case Number: 22STCV20645    Hearing Date: April 7, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Employment and Discharge

On or about November 5, 2015, Defendant Korn Ferry extended to Plaintiff Kelley Brack Jamison an offer of employment to become a Korn Ferry Senior Client Partner. As a condition of employment, Korn Ferry required Plaintiff Jamison to sign the Korn Ferry International Arbitration of Claims & Class Action Waiver. The arbitration agreement contained a confidentiality clause agreeing that all proceedings under the arbitrator would remain confidential—including pleadings, discovery, depositions, exhibits, testimony, and awards—except for proceedings related to the confirmation or appeal of an arbitration award. Plaintiff subsequently accepted the employment offer and executed the arbitration agreement.

Plaintiff resigned from Korn Ferry on April 8, 2021, citing intolerable conditions in her employment, such as failure to promote, harassment, and discrimination against Plaintiff based on a back injury, and defamation of Plaintiff by Korn Ferry partner Christopher Von der Ahe.

Arbitration

On May 23, 2021, pursuant to the arbitration agreement—and to resolve claims threatened by Plaintiff Jamison and recover monies from Plaintiff tied to promissory notes—Korn Ferry and Von der Ahe filed a demand for arbitration with JAMS.

On or about June 21, 2021, Plaintiff Jamison filed a demand for arbitration against Korn Ferry, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, defamation, harassment, discrimination, failure to prevent harassment and discrimination, fraud, negligent misrepresentation, intentional interference with prospective economic relations, and wrongful termination in violation of public policy.

On June 23, 2021, Plaintiff filed LASC Action No. 21SMCV01105, suing Von der Ahe and Does 1-10 pursuant to claims of defamation, harassment, and intentional interference with prospective economic relations. Von der Ahe moved to compel arbitration of these claims, which was later granted by the court on April 21, 2022.

On or about August 17, 2021, the parties stipulated and agreed that the May and June 2021 arbitrations should be consolidated pursuant to Rule 6(e) of the JAMS Employment Rules & Procedures into a single proceeding before the same arbitrator, with Bruce A. Friedman later appointed to this position.

Nonpayment of Arbitration Fees

On April 16, 2022, JAMS sent a deposit request dated April 15, 2022 and in the amount of $190,400 to Lance Etcheverry, counsel of record for Korn Ferry and Von der Ahe, with payment due upon receipt. The deposit related to a retainer for fees to continue arbitration, including for professional time (session time, research, preparation, conference calls, travel, etc.), expenses, and case management fees.

On May 31, 2022, Korn Ferry’s counsel requested a change in the Invoice to reflect billing to Korn Ferry directly. JAMS agreed to reissue the invoice but was explicit that this would not extend the payment deadline. JAMS indicated that the corrected invoice had to be paid by June 16, 2022 to secure an August 15, 2022 hearing date. Korn Ferry paid the invoice on June 14, 2022.

Instant Action and Initial Motions

On June 23, 2022, counsel for Plaintiff sent a letter to JAMS and counsel for Korn Ferry and Mr. Von der Ahe, advising that Plaintiff Jamison had elected to exercise her right to withdraw from the arbitration and proceed in state court.

On June 24, 2022, Plaintiff filed this action, suing Korn Ferry and Does 1-10 pursuant to the claims previous made in arbitration: (1) Breach of Contract, (2) Breach of the Implied Covenant of Good Faith, and Fair Dealing, (3) Defamation, (4) FEHA Harassment, (5) FEHA Discrimination, (6) FEHA Failure to Prevent Harassment and Discrimination, (7) Fraud, (8) Negligent Misrepresentation, (9) Intentional interference with Prospective Economic Relations, and (10) Wrongful Termination.

Plaintiff’s election to withdraw from arbitration and file her Complaint in this action was made on the ground that Korn Ferry’s failure to timely pay arbitration fees within 30 days of their due date—per the Complaint, by May 17, 2022, with April 16, 2022 as the trigger date—constituted a material breach of the arbitration agreement, thus opening the door for Plaintiff to file this action with this Court pursuant to Code of Civil Procedure sections 1281.97 and 1281.98.

On July 27, 2022, Korn Ferry moved to compel Plaintiff Jamison’s claims back into arbitration on the grounds that Korn Ferry remedied any violation of Code of Civil Procedure section 1281.98 by paying the outstanding fees charged by the arbitrator on June 14, 2022, thus curing the statutory violation at issue before Jamison withdrew from arbitration and filed this action.

Also on July 27, 2022, Korn Ferry moved to seal certain exhibits filed with its motion to compel arbitration and with Plaintiff Jamison’s June 24, 2022 Complaint.

In turn, on September 15, 2022, Plaintiff Jamison moved for attorney’s fees and costs related to the underlying arbitration pursuant to Code of Civil Procedure sections 1281.98, subdivision (c), and 1281.99, arguing that these statutory sections permit her recovery of all attorney’s fees and costs associated with the abandoned arbitration proceeding or the reasonable expenses, including attorney’s fees and costs, incurred by Plaintiff Jamison as a result of Korn Ferry’s nonpayment of arbitration fees within 30 days of their due date, i.e., by May 17, 2022.

On October 24, 2022, Plaintiff Jamison provided supplemental briefing on her fees and costs motion.

On November 15, 2022, Korn Ferry amended its motion to compel arbitration.

On March 8, 2023, the Court heard the three motions, as amended or supplemented. The Court:

(1) Denied the motion to seal because Korn Ferry failed to show that the documents Korn Ferry requested be sealed touched upon an overriding interest overcoming the right of public access to those records;

(2) Denied the motion to compel arbitration because the Court interpreted Korn Ferry’s nonpayment of the continued arbitration fees within 30 days of their due date as a material breach of the arbitration agreement, and because a proper interpretation of Code of Civil Procedure section 1281.98 and related case law compelled the conclusion that Korn Ferry could not cure such a defect, leaving the decision to withdraw or reenter arbitration solely in the discretion of Plaintiff Jamison, who elected to withdraw from arbitration and pursue her rights by filing this lawsuit; and

(3) Continued the hearing on the attorney’s fees motion to obtain supplemental briefing clarifying (a) whether Plaintiff Jamison’s withdrawal from arbitration involved withdrawal of her claims alone or withdrawal of Plaintiff’s, Korn Ferry’s, and Von der Ahe’s arbitration claims together and (b) the grounds for the requested fees that were listed in the time records provided in Plaintiff Jamison’s motion for attorney’s fees and costs.

Supplemental Fees Motion and Appeal

On March 16, 2023, Plaintiff Jamison provided the supplemental briefing requested by the Court in the form of a supplemental motion for attorney’s fees and costs.

On March 22, 2023, Korn Ferry appealed the March 8, 2023 order insofar as it denied Korn Ferry’s motion to compel arbitration.

On March 24, 2023, Korn Ferry filed its supplemental briefing in the form of an opposition to the March 16th motion by Plaintiff Jamison.

On April 3, 2023, Plaintiff Jamison filed a reply to Korn Ferry’s March 24th opposition.

The supplemental briefing is now before the Court.

I.

Scope of Arbitration Withdrawal: Limited to Plaintiff’s Claims Against Korn Ferry.

The Court first analyzes whether Plaintiff Jamison’s withdrawal from arbitration involved withdrawal of her claims alone or withdrawal of Plaintiff’s, Korn Ferry’s, and Von der Ahe’s arbitration claims together.

Plaintiff Jamison argues that the plain language of Code of Civil Procedure section 1281.98, subdivisions (a) and (b) allows withdrawal of an entire arbitration proceeding regardless of whether the arbitration is comprised of cross claims by the parties against one another because the language in these subdivisions speaks of payment of fees for “the arbitration proceeding” and withdrawal of “the claim from arbitration” generally, where such withdrawal “is not limited to claims the employee brings in arbitration,” but rather, “encompasses all claims asserted ‘[i]n an employment . . . arbitration that require[—]either expressly or through application of state or federal law or the rules of the arbitration provider[—]that the drafting party pay certain fees and costs ….’ Code Civ. Proc. § 1281.98(a)(1).” (3/16/23 Mot., 9:5-12; see also Mot., 9:23-10:2.)

Plaintiff Jamison also argues that:

(1) “If the Legislature [had] intended to expressly limit the claims that can be withdrawn from arbitration under Section 1281.98 to those brought by the employee, it could have done so, but it did not” (3/16/23 Mot., 9:10-12);

(2) The cross arbitrations initiated by Korn Ferry, Von der Ahe, and Plaintiff have been consolidated into a single arbitration under JAMS, with all claims deemed to be employment related and brought pursuant to the parties’ arbitration agreement (3/16/23 Mot., 9:13-21);

(3) The invoice that was not paid and triggered Korn Ferry’s material breach of the arbitration agreement was issued to Korn Ferry and Von der Ahe as a fee for all arbitration actions combined (3/16/23 Mot., 9:21-23); and

(4) “There is nothing in the statutory language or legislative history that even implies that claims brought by an employee are distinct from claims brought by the drafting party/employer for purposes of this statutory scheme, [l]et alone when these claims are part of a single, consolidated arbitration proceeding,” where “[t]o allow such severance of claims ‘would establish a perverse incentive for drafting parties[]’ S. B. No. 707, 2019-2020 Reg. Sess. (Cal. 2019)” and “forc[e] the employee to litigate in two different fora in the event the employee exercised her unilateral right to withdraw her claims from arbitration” (3/16/23 Mot., 10:3-14).

In opposition, Korn Ferry argues that an employee cannot unilaterally withdraw an employer’s claims from arbitration because the legislative history of section 1281.98 shows that the purpose of the statute was to ensure that an employee could vindicate his or her rights, a goal that does not involve removing from arbitration claims related to the employer’s rights. (See 3/24/23 Opp’n, 7:4-23.)

Korn Ferry also argues that Plaintiff’s interpretation of withdrawal from arbitration would have absurd and far-reaching consequences because:

(1) “There is no procedure that allows one party to unilaterally withdraw another’s claims from a proceeding, or that allows one party to file another’s claims (including against himself or herself)” (3/24/23 Opp’n, 7:26-8:8);

(2) “[T]here is no indication that the Legislature intended to create a novel procedure for filing and prosecuting claims that were outside the exclusive (unilateral) control of the employee” where the Legislature did not address important questions for such a procedure, like (a) what section of the Code of Civil Procedure permits an employee to bring the claims of an employer, (b) who drafts the complaint where an arbitration demand filed with JAMS may not meet state court requirements, (c) who pays the filing fees, initiates case documentation, and pays other fees, or (d) how an employee can serve a complaint on him- or herself and when a responsive pleading is due (3/24/23 Opp’n, 8:9-19);

(3) There is no clear procedure by which an employee may “tender” another party’s claims in court by attaching them to the first party’s complaint (3/24/23 Opp’n, 8:20-24); and

(4) The Complaint does not allege Korn Ferry’s and Von der Ahe’s arbitration claims, nor does it name Von der Ahe on the case caption as a party to the action (3/24/23 Opp’n, 8:24-9:1, 8:25 fn. 3.)

Last, Korn Ferry argues that the fact that the arbitrations were consolidated is irrelevant because:

(1) Case law related to lawsuits filed in state court holds that “[i]n any consolidated action, if the first party’s claims are withdrawn or dismissed that does not mean the second party’s claims must also be withdrawn or dismissed,” where “[t]here is no reason to treat consolidated arbitration claims differently,” i.e., there is no reason for allowing a ‘dismissal’ of Plaintiff Jamison’s claims into state court while keeping the Korn Ferry and Von der Ahe claims in arbitration (3/24/23 Opp’n, 9:3-17 fn. 4);

(2) Plaintiff Jamison’s argument that she should not be forced to litigate in two different fora rings hollow where section 1281.98, subdivision (b) permits the employee to either withdraw the arbitration claims or continue with arbitration and where Plaintiff Jamison attempted to bring claims in arbitration against Korn Ferry but sued Von der Ahe in state court—which the Court notes Von der Ahe compelled into arbitration (3/24/23 Opp’n, 9:18-10:5).

In reply, Plaintiff Jamison argues that:

(1) Nothing in the plain language of section 1281.98 limits Plaintiff Jamison’s ability to withdraw the entirety of the arbitration proceedings (4/3/23 Reply, 3:4-11);

(2) This construction of the statute would not, as argued by Korn Ferry, “‘impermissibly expand the application of section 1281.98 to every commonplace employer claim’” because such claims are already encompassed within the statutory scheme (4/3/23 Reply, 3:12-28);

(3) “[N]either the statute nor the legislative history contemplates an outcome where an employee is forced to continue to arbitrate contrary to the employee’s election and despite the employer having materially breached the arbitration agreement” because “[s]uch an outcome would defeat the statute’s express purpose and deprive the employee of the rights afforded by Section 1281.98” such as by “forc[ing] [Plaintiff] to proceed in two different fora” (4/3/23 Reply, 4:1-6);

(4) Korn Ferry’s cited case law likening the withdrawal of arbitration claims pursuant to section 1281.98 to dismissal of consolidated actions is irrelevant because those cases are distinguishable insofar as “[t]he Consolidated Arbitration here had a single arbitration hearing and involved the same claims between the same parties” (4/3/23 Reply, 4:6 fn. 1);

(5) Korn Ferry’s arguments that there are no statutory procedures to allow an employee to withdraw an employer’s claims from arbitration are unavailing where such withdrawal can be compared to removal of cases between state and federal courts and the transfer of cases between venues (4/3/23 Reply, 4:7-16); and

(6) “The questions Korn Ferry raises about the procedural details are no obstacle” because “[a]s in a removal or transfer of venue, the defendant does not draft the complaint” but instead “files the complaint already drafted by the plaintiff in the new forum” where “[t]he filing fee would be paid by the employee, although presumably the employee could seek to recover that fee pursuant to Section 1281.99(a),” where, “[a]s in any case, the jury fees would need to be paid by at least one party on each side before the initial case management conference. Code Civ. Proc. § 631(b)” and “[i]f, as was the case here, a responsive pleading had already been filed in the arbitration, presumably no additional responsive pleading would be necessary for the case to ‘proceed’ in court” (4/3/23 Reply, 4:16 fn. 2.)

The Court agrees with Korn Ferry. While the plain text of the statute and legal interpretations and the context and structure thereof are ambiguous as to the scope of withdrawn claims, the purpose of the statute supports Korn Ferry’s interpretation of subdivision (b)(1) as limiting withdrawal of claims from arbitration to the claims advanced by an employee or consumer therein.

First, the text of section 1281.98, subdivision (b)(1) of the Code of Civil Procedure is ambiguous, permitting an employee to “[w]ithdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.” (Code Civ. Proc., § 1281.98, subd. (b)(1), emphasis added.) Otherwise stated, the statutory section does not clarify whether withdrawal involves withdrawal of “the employee’s or consumer’s claims from arbitration” or the withdrawal of “all claims brought in arbitration.”

A review of California Senate Bill No. 707—amending section 1281.98 of the Code of Civil Procedure—also does not clarify the scope of an employee’s or consumer’s ability to “[w]ithdraw the claim from arbitration and proceed in a court of appropriate jurisdiction” pursuant to Code of Civil Procedure section 1281.98, subdivision (b)(1). (See Sen. Bill No. 707 (2019-2020 Reg. Sess.) 2019 CA S.B. 707 (Oct. 13, 2019), §§ 1-6, emphasis added [see introduction citing to three cases that only deal with delay of arbitration proceedings by the drafting party and not with the scope of arbitration claims to be withdrawn]; see also Sen. Bill No. 707 (2019-2020 Reg. Sess.) 2019 CA S.B. 707 (Oct. 13, 2019), § 2 [providing definitions for language used in statutory sections therein but failing to define “claim”].)

Second, the only legal interpretation of the Code of Civil Procedure section 1281.98, subdivision (b)(1) comes from Williams v. West Coast Hospitals, Inc. and is not helpful because its analysis was limited to the question of whether, inter alia, the trial court correctly lifted a stay on arbitration where the employer had failed to pay continued arbitration fees and the plaintiff elected to withdraw his claims from arbitration and resume proceedings in state court. (Williams v. West Coast Hospitals, Inc. (2022) 86 Cal.App.5th 1054, 1062-63, 1069). Williams is also not helpful because that case is factually distinguishable from the circumstances in this case, where only the plaintiff in Williams filed claims against the defendant, with the defendant moving to compel arbitration of plaintiff’s claims, the trial court ordering arbitration, the defendant failing to pay continued arbitration fees, and the plaintiff successfully withdrawing his claims from arbitration and resuming proceedings in state court as a result of defendant’s nonpayment. (Id. at pp. 1062-63.) Neither does Williams define “claim” as used in section 1281.98, subdivision (b)(1). (See id. at pp. 1064-65, 1066, 1067, 1070, 1071, 1072 [references to “claims” failing to clarify scope of withdrawn claims under subdivision (b)(1)]; id. at p. 1066 [specific references to subdivision (b)(1) failing to clarify scope of withdrawn “claim[s]”].)

Third, the context and structure of the statute neither supports nor contradicts the Court’s conclusion. Nowhere in Chapter 2 of Part 3, Title 9 of the Code of Civil Procedure—containing sections 1281 to 1281.99, relating to the “Enforcement of Arbitration Agreements”—is “claim” defined to mean either an “employee’s or consumer’s” claims in arbitration or claims brought in arbitration as a whole. Section 1281.5 contemplates “claim[s] of lien” rather than arbitration claims. (See Code Civ. Proc., § 1281.5.) Section 1281.8 uses “claim” in the sense of an assertion or argument unrelated to the scope of arbitration “claim[s].” (See Code Civ. Proc., § 1281.8, subds. (c) [“A claim by the party … that the controversy is not subject to arbitration ….”], (d) [“… which is claimed to be arbitrable under the agreement …”].)  While sections 1281.91, 1281.95, and 1281.96 discuss claims in the sense of individual counts related to a cause of action, the relevant subdivisions do not distinguish between claims made by an employee or consumer and those made by a drafting party, e.g., an employer. (See Code Civ. Proc., §§ 1281.91, subd. (c), 1281.95, subd. (a), and 1281.96, subd. (a)(10).) Section 1281.97 simply mirrors section 1281.98 but in the context of nonpayment of fees to initiate rather than continue arbitration, thus providing no clarification on the scope of “claim[s].” (Compare Code Civ. Proc., § 1281.97, with Code Civ. Proc., § 1281.98.)

However, fourth, a review of the Legislature’s comments on this statutory section supports Korn Ferry’s interpretation because the Legislature’s comments regarding the purpose of Code of Civil Procedure section 1281.98, subdivision (b)(1) properly define “claim” as claims brought by an employee or consumer. Specifically, the Legislature commented that “[t]o ensure that a drafting party cannot unilaterally prevent a party from adjudicating their claims in the forum that the drafting party unilaterally foisted onto the claimant, th[e] bill [creating section 1281.98] would provide employees and consumers remedies if a drafting party refuses to pay” the costs of arbitration by, “[m]ost importantly, … provid[ing] employees and consumers [the ability] to get their claim adjudicated in the venue of their choice in a timely manner.” (Assem. Com. on Judiciary, Rep. on Sen. Bill 707 (2019-2020 Reg. Sess.) 2019 CA S.B. 707, June 14, 2019, p. 10, emphasis added.) This interpretation is supported by Williams’ observation that “the Legislature intended to prevent drafting parties from abusing their obligation to pay arbitration fees as a means of ‘severely prejudic[ing]’ employees and consumers in the vindication of their rights by ‘hinder[ing] the efficient resolution of disputes.’ (See Stats. 2019, ch. 870, § 1(c)-(d).)” (Williams v. West Coast Hospitals, Inc., supra, 86 Cal.App.5th at p. 1067.) This is because a drafting party cannot hinder a vindication of an employee’s rights where the employee is allowed to withdraw his or her claims from arbitration and file these in state court but where any claims involving the drafting party’s rights remain in arbitration. Otherwise stated, an employee would not be prejudiced if the drafting party were to delay arbitration of the drafting party’s own claims because it is the drafting party alone that would suffer from such delay.

As such, while it appears to be a matter of first impression, the Court concludes that subdivision (b)(1) of section 1281.98 of the Code of Civil Procedure is limited to withdrawal of an employee’s or consumer’s claims in arbitration.

Last, and although it is not determinative given the Court’s ruling above, to whatever degree Plaintiff Jamison argues that she tendered claims against her by Von der Ahe and Korn Ferry by attaching to the Complaint the arbitration demands made by Korn Ferry, Von der Ahe, and herself, (see 3/16/23 Mot., 8:16-22), the Court finds that attaching another party’s arbitration claim to one’s one complaint does not constitute submission of those claims on behalf of one’s opposing party. The body of the Complaint contains no incorporation of any such claims, nor does it seem that it could do so. While Jamison points out there is a statutory procedure to attach a complaint to a notice of removal to federal court or to transfer venue in state court, she points to no such authority to do the same in these circumstances. The Court agrees with Korn Ferry that this would only raise more questions than it could answer.

For all these reasons, the Court finds that Plaintiff’s claims against any Defendants as stated in her Complaint will proceed in Superior Court (stayed pending the appeal), but any and all claims raised by the defendants against her can remain in arbitration. 

II.

Plaintiff Jamison’s Motion for Attorney’s Fees and Costs: UNDER SUBMISSION.

Effect of Appeal on Attorney’s Fees

As a preliminary matter, the Court retains jurisdiction to consider the fees and costs motion despite the pendency of Korn Ferry’s March 22, 2023 appeal of this Court’s March 8, 2023 denial of Korn Ferry’s motion to compel arbitration.

“[T]he trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) “[T]he filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post [i.e., after] trial. Although a prevailing party at trial may not be the prevailing party after an appeal, it has been held that¿a motion for attorney fees is not premature despite the filing of a notice of appeal.” (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368, superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197; accord. Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1052.) “[A]n award of attorney[’s] fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken.” (Id. at 369.) “Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney[’s] fees claimed as costs.” (Ibid.)

Version of Fees Motion at Issue

The Court will rule on the supplemental March 16, 2023 motion for attorney’s fees by Plaintiff Jamison.

Legal Standard

            A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (a)(4), (b).) Attorney’s fees are recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)

If an employee or consumer withdraws a claim from arbitration and proceeds in a court of appropriate jurisdiction pursuant to Code of Civil Procedure section 1281.98, subdivision (b)(1): (1) the employee or consumer may bring a motion, or a separate action, to recover all attorney’s fees and all costs associated with the abandoned arbitration proceeding, without regard to any findings on the merits in the underlying action or arbitration; and (2) the court shall impose sanctions on the drafting party in accordance with Section 1281.99. (Code Civ. Proc., §§ 1281.98, subds. (c)(1)-(2).)

The Court must impose a monetary sanction against the drafting party that materially breached the arbitration agreement by ordering the drafting party to pay the reasonable expenses, including attorney’s fees and costs, incurred by the employee or consumer as a result of the material breach. (Code Civ. Proc., § 1281.99.)

Relief Pursuant to Code Civ. Proc., § 1281.98, subd. (c)(1)

The Court briefly notes that as an employee who successfully withdrew her claims from an arbitration proceeding and filed the same with a court of appropriate jurisdiction pursuant to subdivision (b)(1) of section 1281.98 (see 3/8/23 Minutes, pp. 8-10), Plaintiff Jamison may “recover all attorney’s fees and all costs associated with the abandoned arbitration proceeding.” (Code Civ. Proc., § 1281.98, subd. (c)(1).)

While Plaintiff Jamison argues that she is entitled to all fees and costs billed by counsel for work related to the entirety of the arbitration proceedings without regard for the reasonableness of the request (3/16/23 Mot., 10:20-25), the Court (1) finds that the lodestar analysis is generally applicable to all requests for fees and costs and (2) interprets Code of Civil Procedure section 1281.98, subdivision (c)(1) to permit recovery only for Plaintiff Jamison’s fees and costs related to the abandoned portion of the arbitration proceedings, i.e., fees and costs related only to the work performed by Plaintiff’s counsel on Plaintiff’s claims against Korn Ferry and Does 1-10, as withdrawn from arbitration and filed in state court in the instant lawsuit.

Relief Pursuant to Code Civ. Proc., §§ 1281.98, subd. (c)(2) and 1281.99

The Court also briefly notes that because Korn Ferry materially breached the parties’ arbitration agreement by failing to pay continued arbitration fees due to JAMS by May 17, 2022 (see 3/8/23 Minutes, pp. 8-10), the Court must order Korn Ferry to pay the reasonable expenses, including attorney’s fees and costs, incurred by Plaintiff Jamison as a result of the material breach.

Relief as to Plaintiff Jamison’s Arbitration Claims Alone or Relief as to All Claims Including Korn Ferry’s and Von der Ahe’s Claims

As noted ante, the Court limits recovery of fees and costs to fees and costs related only to the work performed by Plaintiff’s counsel on Plaintiff’s claims against Korn Ferry and Does 1-10, as withdrawn from arbitration and filed in state court in the instant lawsuit, and to reasonable expenses, including attorney’s fees and costs, incurred by Plaintiff Jamison as a result of Korn Ferry’s material breach of the arbitration agreement.

Lodestar Analysis

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.) 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, 1393-94.)

Plaintiff seeks attorney’s fees in the amount of $334,600.50 and costs in the amount of $808.85 for work performed by Plaintiff’s counsel in the underlying arbitration proceeding. (3/16/23 Mot., 11:9-10.)

After review, the Court TAKES the motion for attorney’s fees and costs UNDER SUBMISSION as to properly parse through the requests and ensure that recovery is limited to the reasonable recovery of fees and costs related to (1) fees and costs to fees and costs related to the work performed by Plaintiff’s counsel on Plaintiff’s claims against Korn Ferry and Does 1-10, as withdrawn from arbitration and filed in state court in the instant lawsuit, and (2) reasonable expenses, including attorney’s fees and costs, incurred by Plaintiff Jamison as a result of Korn Ferry’s material breach of the arbitration agreement.

Conclusion

The scope of the withdrawal from arbitration effected by Plaintiff Kelley Brack Jamison is LIMITED TO PLAINTIFF’S CLAIMS AGAINST KORN FERRY AND DOES 1-10 because a proper construction of Code of Civil Procedure section 1281.98, subdivision (b)(1) compels this conclusion through a reading of Legislative comments pertaining to subdivision (b)(1).

Plaintiff Kelley Brack Jamison’s Motion for Attorney’s Fees and Costs is TAKEN UNDER SUBMISSION in light of the Court’s need to parse through Plaintiff’s requests and limit relief to (1) fees and costs to fees and costs related to the work performed by Plaintiff’s counsel on Plaintiff’s claims against Korn Ferry and Does 1-10, as withdrawn from arbitration and filed in state court in the instant lawsuit, and (2) reasonable expenses, including attorney’s fees and costs, incurred by Plaintiff Jamison as a result of Korn Ferry’s material breach of the arbitration agreement.