Judge Armen Tamzarian, Case Number: 19STCV39800, Date: 2023-09-27 Tentative Ruling

Judge: Armen Tamzarian, Case: 19STCV39800, Date: 2023-09-27 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 19STCV39800 Hearing Date: September 27, 2023 Dept: 52

Plaintiff Terry Records’ Motion for Attorney Fees

Plaintiff Terry Records moves for $596,030 in attorney fees from defendants ALF Management Group, Inc. and Hakop Chichyan. In determining what constitutes a reasonable fee, the court ordinarily begins with the lodestar, that is, “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court may rely on its own experience and knowledge in determining the reasonable value of attorney fees. (Id. at p. 1096; accord Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1249.)

Basis for Attorney Fees

A prevailing party can only recover attorney fees when authorized by contract, statute, or law. (CCP § 1033.5(a)(10).) Plaintiff claims attorney fees under three statutes: Code of Civil Procedure section 1021.6, Labor Code section 218.5, and Labor Code section 226. Only the third statute applies.

Code of Civil Procedure section 1021.6 provides, “[A] court after reviewing the evidence in the principal case may award attorney’s fees to a person who prevails on a claim for implied indemnity.” Plaintiff did not prevail on a claim for implied indemnity. Plaintiff prevailed on only one of his causes of action: failure to provide accurate wage statements under Labor Code section 226. He prevailed as cross-defendant to the cross-complaint, but the cross-complaint made no claim for implied indemnity. Plaintiff brought his own cross-complaint for indemnification but did not prevail on it.

Labor Code section 218.5, subdivision (a) provides, “In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party.” Though plaintiff brought this action in part for nonpayment of wages, he did not prevail on any cause of action arising from unpaid wages. He therefore cannot recover attorney fees under this statute.

Plaintiff may only recover attorney fees under Labor Code section 226, subdivision (e)(1). “An employee suffering injury as a result of a knowing and intentional failure by an employer to” provide accurate wage statements “is entitled to an award of costs and reasonable attorney’s fees.” (Ibid.) Plaintiff prevailed on his cause of action under Labor Code section 226 and is therefore entitled to recover reasonable attorney fees.

Hours and Apportionment

Plaintiff claims 1,059 hours of attorney fees: 375 hours by Timothy Donahue, 565 hours by Steve Basinger, and 119 hours by an unnamed legal assistant.

In calculating the lodestar, the court must determine whether the tasks performed by an attorney were necessary and whether the amount of time billed for each task was reasonable. (Baxter v. Bock (2016) 247 Cal.App.4th 775, 793.) Moreover, “a prevailing party generally may not recover for work on causes of action on which the party was unsuccessful.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 342.) However, “attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111, internal quotes and alterations omitted.)

Plaintiff’s complaint alleged 10 causes of action. Plaintiff also filed a cross-complaint for three more causes of action: indemnification, apportionment of fault, and violation of Labor Code section 2802. Plaintiff succeeded on only one cause of action: the sixth cause of action for failure to provide accurate wage statements in violation of Labor Code section 226. For that claim, the only substantial dispute was whether plaintiff should have been classified as an employee or an independent contractor. The same issue was also common to several other causes of action.

The other causes of action primarily concerned matters irrelevant to the sixth cause of action. The issues of wrongful termination, discrimination, retaliation, and failing to pay wages are not intertwined with plaintiff’s sixth cause of action. Plaintiff’s ninth cause of action for intentional infliction of emotional distress had no overlapping issues with plaintiff’s successful cause of action.

Although plaintiff succeeded on only one of the thirteen causes of action he brought, he argues against apportionment on the grounds that “[d]efendants do not and cannot parse out a percentage of attorney fees for one claim or the other.” (Reply, p. 2.) Defendants cannot parse out a percentage because plaintiff provided no explanation of the hours counsel spent on any task except this attorney fee motion. Plaintiff merely gives vague descriptions of tasks done (Donahue Decl., ¶¶ 2-6) and states the total hours each attorney worked (id., ¶¶ 7-8). Apart from this motion, plaintiff does not disclose the number of hours his lawyers spent on any particular task. As a matter of equity, plaintiff should not benefit from his withholding of information the court needs to adjudicate his motion. (See Civ. Code, § 3517 [“No one can take advantage of his own wrong”].)

For this motion, plaintiff claims a total of 41 hours of attorney fees. (8/28/23 Donahue Decl., ¶ 2; 9/20/23 Donahue Decl. ¶ 6.) That is excessive. This motion was simple. The memorandum of points and authorities is only 11 pages. About four pages are basic statements of the law on attorney fees, which are not tailored to this case. The memorandum also makes ad hominem attacks on defendant Chichyan. The court did not consider these irrelevant arguments in deciding the merits of this motion.

Plaintiff’s failure to provide any details about the remaining 1,024 hours his lawyers allegedly spent working on this case warrants reducing the lodestar. A “court may, in its discretion, reduce an award of attorney fees if the attorney’s bills are too vague to allow the court to determine if the hours spent on a case were justifiable.” (Minser v. Collect Access, LLC (2023) 92 Cal.App.5th 781, 797 [affirming award of all fees claimed for 53 total hours].) Providing only a declaration stating the total number of hours each attorney worked on unspecified tasks is wholly inadequate.

Plaintiff provides no authority on the evidence required to substantiate a fee award subject to apportionment for unsuccessful claims. Though “an award of attorney fees may be based on counsel’s declarations, without production of detailed time records” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375), the cases affirming such awards have fewer hours claimed and more limited proceedings. In Raining Data Corp., the trial court awarded attorney fees to a defendant who prevailed on an anti-SLAPP motion. (Id. at p. 1367.) In Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587, the Court of Appeal stated, “Although a fee request ordinarily should be documented in great detail, it cannot be said in this particular case that the absence of time records and billing statements deprived the trial court of substantial evidence to support an award.” There, “the number of hours was between 90 and 103.” (Ibid.) Here, by contrast, plaintiff is required to provide greater detail because he is claiming his lawyers spent more than 1000 hours litigating the case through trial.

Left with so little data, the court must rely on its familiarity with the case, which it developed by reviewing numerous court filings, presiding over many pretrial hearings, and presiding over a non-jury trial. The court concludes plaintiff’s counsel reasonably performed the following compensable tasks: drafting the complaint, interviewing and communicating with their client, propounding and responding to written discovery, preparing for and attending depositions, conducting legal research and drafting briefs, corresponding with opposing counsel and engaging in settlement discussions, attending pre-trial conferences, preparing for and attending the five-day trial, preparing a memorandum of costs, and filing this motion and attending this hearing. Much if not most of the time spent on those tasks was devoted to issues completely unrelated to plaintiff’s sole successful cause of action for failure to provide accurate wage statements. Upon consideration of Donahue’s declaration in support of this motion, the court’s familiarity with the case, and the totality of circumstances, the court finds that plaintiff should be awarded 150 hours of attorney time working on plaintiff’s sole successful cause of action and the present motion.

This leads to another difficult question: How should the court allocate those 150 hours among the two lawyers who worked on the case? Plaintiff provides a minimal explanation of the work done by Steve Basinger. Plaintiff asserts Basinger “handled most of the pleadings, the depositions and one of the mediations.” (Motion, p. 4.) Basinger did not appear on plaintiff’s behalf during the trial and his name generally does not appear on plaintiff’s papers. Because plaintiff did not provide any breakdown of the time spent on particular tasks, the fairest way to determine how many hours each attorney worked is to apply the proportion of hours plaintiff’s counsel claimed: 40% for Donahue and 60% for Basinger. The court thus finds plaintiff reasonably incurred a total of 60 compensable hours by Timothy Donahue and 90 compensable hours by Steve Basinger.

The court will not award any of the 119 hours plaintiff claims for the legal assistant. “[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” (Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288, fn. 10.) Plaintiff’s motion asserts the legal assistant “[a]ssist[ed] with discovery, filing, and serving documents, scheduling with the client and all scheduling matters.” (Motion, p. 4.) Except for “[a]ssisting with discovery,” these are all clerical tasks. Nothing in the record shows the legal assistant did work justifying recovery of attorney fees at any hourly rate.

Hourly Rate

Plaintiff claims hourly rates of $790 for Timothy Donahue and $500 for Steve Basinger. For hourly rates, “the trial court is in the best position to value the services rendered by the attorneys.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436.) Courts may rely on their “own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Id. at p. 437, citations omitted.)

Plaintiff submitted evidence regarding hourly rates of other attorneys in other cases. The court does not find that evidence persuasive.

The court has some information about attorney Donahue’s credentials. He has been in civil practice nearly 40 years. Based on the court’s observations during the trial and at hearings, Mr. Donahue has some expertise in employment law. The court has almost no evidence regarding attorney Basinger’s credentials. The court has only been informed that Basinger “has more than 10 years of experience as an attorney.” (Donahue Decl., ¶ 7.)

This case did not involve novel or complex factual or legal questions. Based on plaintiff’s counsel’s credentials, the court’s experience and knowledge of the legal market, and the court’s observations of plaintiff’s counsel and its review of plaintiff’s briefs throughout this case, the court concludes the reasonable hourly market rates are $600 for Timothy Donahue and $400 for Steve Basinger.

Adjusted Lodestar

After reducing the hours and rates as discussed above, the court awards plaintiff a total of $72,000 in attorney fees: $36,000 for 60 hours by Donahue at $600 per hour plus $36,000 for 90 hours by Basinger at $400 per hour.

Disposition

Plaintiff Terry Records’ motion for attorney fees is granted in part. Plaintiff Terry Records shall recover $72,000 in attorney fees from defendants ALF Management Group, Inc. and Hakop Chichyan.