Judge: Armen Tamzarian, Case: BC697003, Date: 2024-05-03 Tentative Ruling

Case Number: BC697003    Hearing Date: May 3, 2024    Dept: 52

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

Plaintiff Shirin Buckman moves for attorney fees incurred on appeal and for fees incurred making this motion.   

Requests for Judicial Notice

Plaintiff requests judicial notice of five exhibits.  Defendant City of Los Angeles requests judicial notice of one exhibit.  All six exhibits are subject to judicial notice.  All six requests for judicial notice are granted.

Evidentiary Objections

Plaintiff makes three objections to the declaration of Michael Walsh.  Objection No. 1 is overruled.  Objection Nos. 2 and 3 are sustained.

Procedural History

Plaintiff’s operative first amended complaint alleges seven causes of action:

1. Retaliation in violation of the California Family Rights Act (CFRA);

2. Disability discrimination in violation of Fair Employment and Housing Act (FEHA);

3. Discrimination based on perceived disability in violation of FEHA;

4. Failure to take reasonable steps to prevent discrimination;

5. Intentional infliction of emotional distress;

6. Failure to pay wages; and

7. Illegal collection back of employee’s wages. 

At trial, plaintiff succeeded on the first, fifth, sixth, and seventh causes of action.  The court then awarded plaintiff attorney fees under Government Code section 12965.

Defendant appealed on several grounds, including that the evidence did not support the judgment on the first cause of action and that the trial court erred in awarding excessive attorney fees.  Plaintiff cross-appealed on the basis that the trial court erred by awarding insufficient attorney fees.  The Court of Appeal affirmed the judgment as to the first cause of action and reversed the judgment as to the fifth and sixth causes of action.  Because defendant’s appeal was partially successful, the Court of Appeal also reversed the award of attorney fees and directed the trial court to reconsider the entire award.  The Court of Appeal “decline[d] to consider Buckman’s cross-appeal at this time, as the fee award will be reconsidered in its entirety upon remand.”  (Opinion, p. 45.)

Apportionment

Plaintiff is not entitled to recover attorney fees spent on all aspects of the appeal and cross-appeal.  When a prevailing party has limited success, the court must “evaluate ‘whether “the plaintiff fail[ed] to prevail on claims that were unrelated to the claims on which he [or she] succeeded.” ’ ”  (Gunther v. Alaska Airlines, Inc. (2021) 72 Cal.App.5th 334, 360.)  If the claims are unrelated, “ ‘the hours spent on the unsuccessful claim should be excluded.’ ”  (Ibid.)  Plaintiff voluntarily reduced her lodestar by 311.3 hours to account for time spent responding to the City’s successful appeal of the fifth and sixth causes of action.  (Motion, p. 9.)

Defendant argues time spent on plaintiff’s cross-appeal should also be apportioned.  Plaintiff argues she succeeded on the cross-appeal.  She contends she sought the Court of Appeal to reverse the fee award and remand to the trial court to reconsider the award, and the Court of Appeal did just that.  The Court of Appeal, however, expressly declined to consider Buckman’s cross-appeal.  She did not prevail on the cross-appeal.

Though plaintiff did not prevail on her cross-appeal, the court finds apportionment of those fees is not appropriate.  In FEHA cases, “ ‘[f]ee awards should be fully compensatory.’ ”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394.)  “ ‘[A]bsent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent’ in litigating the action to a successful conclusion.”  (Ibid.)  A “ ‘fully compensatory’ ” award “includes work on unsuccessful arguments.”  (State Farm General Insurance Company v. Lara (2021) 71 Cal.App.5th 197, 218.)

Plaintiff is the prevailing party in this action.  In CFRA and FEHA cases, the court awards fees “to the prevailing party” (Gov. Code, § 12965(c)(6)), generally limited to prevailing plaintiffs.  This fee provision does not necessarily require plaintiff to be the prevailing party on the appeal itself.  “Because FEHA does not define the term prevailing party, prevailing party status is determined in this context based on an evaluation of whether a party prevailed on a practical level.”  (Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 562, internal quotes omitted.) 

Overall, plaintiff prevailed on the appeal.  She successfully defended her first cause of action.  That cause of action is the source of both (a) the majority of plaintiff’s damages (Jan. 31, 2020 Statement of Decision, pp. 26-27) and (b) plaintiff’s right to recover attorney fees—which far exceed her damages.  That the Court of Appeal did not rule in plaintiff’s favor on her cross-appeal does not detract from her overall success.     

 Moreover, though plaintiff did not succeed on her cross-appeal, she should recover those fees under the principle of awarding fully compensatory fees.  “ ‘To reduce the attorneys’ fees of a successful party because he did not prevail on all his arguments, makes it the attorney, and not the defendant, who pays the costs of enforcing’ the plaintiff’s rights.”  (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 431.)  Depending on this court’s reconsideration of the award for prejudgment attorney fees, the Court of Appeal may never rule on the issues plaintiff raised in her cross-appeal.  When reconsidering the fee award, this court may ultimately adopt the arguments plaintiff made on her cross-appeal.  That the Court of Appeal reversed the attorney fee award for other reasons should not deprive plaintiff of the right to recover fees incurred on her cross-appeal of that award.

Hourly Rates

The court will reduce one of plaintiff’s counsel’s hourly rates.  “The reasonable hourly rate is that prevailing in the community for similar work.”  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  The court should consider many factors, including the nature and difficulty of the litigation, the stakes involved, the skill required and employed by the attorney in handling the case, the attorney’s age, experience, and learning, the success or failure of the litigation, and other relevant circumstances.  (Id. at p. 1096; Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 168.)

For Brian Brown, plaintiff seeks $700 per hour for work in 2020 and $825 for work beginning in 2021.  He has practiced law for over 40 years.  (Brown Decl., ¶¶ 3-4, 6.)  He has “prepared and successfully argued numerous appeals and writs in both State and Federal courts.”  (Id., ¶ 8.)  In light of the contingency nature of Brown’s representation, his rates are reasonable.[1]

For Rachel Goldstein, plaintiff seeks $500 per hour for work in 2020 and $650 for work beginning in 2021.  Goldstein has practiced law for over 25 years (Goldstein Decl., ¶ 7), but she does not testify she has any experience working on appeals.  The record indicates she has substantial experience practicing law before trial courts, but not before appellate courts.  Plaintiff’s supporting declarations from other attorneys and from fee expert Richard Pearl are not persuasive as to Goldstein’s rates.  Those declarations focus on market rates for attorneys based on their experience in general.  They do not account for Goldstein’s relative inexperience as an appellate attorney.  The court will reduce her hourly rates from $500 and $650 to $450 and $600, respectively. 

Plaintiff seeks $800 per hour for work by R. Chris Lim.  He is a California Certified Specialist in Appellate Law with 11 years of work as an appellate lawyer.  (Lim Decl., ¶ 3.)  In light of the contingency nature of Lim’s representation, his rate is reasonable.

Reasonable Number of Hours

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.)  The moving party has the burden of proof on these issues.  (Ibid.)  “Reasonable compensation does not include compensation for padding in the form of inefficient or duplicative efforts.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38, internal quotes omitted.)

Plaintiff’s lodestar of 1,086.40 hours of fees on the appeal and cross-appeal is excessive.  This amount reflects highly inefficient work.  Given the voluminous billing records, the court will provide some examples to illustrate counsel’s inefficiency. 

The City initially defaulted on its appeal.  The Court of Appeal dismissed the appeal.  The City then moved to vacate the dismissal and reinstate the appeal.  From August 26 to September 15, 2020, Brown billed 34.6 hours (Brown Decl., Ex. A, pp. 5-6), and Goldstein billed 29.5 hours (Goldstein Decl., Ex. B, pp. 36-38.) 

Moving to vacate dismissal and reinstate an appeal and opposing such a motion are among the simplest possible work in appellate practice.  Such relief is routinely granted.  Experienced appellate lawyers often do not oppose such motions.  Defendant’s opposition argues plaintiff acted unreasonably in opposing the motion at all.  Assuming it was reasonable to oppose that motion, spending 64.1 hours doing so was extremely inefficient.  In other words, it was not reasonably necessary to spend that amount of time.

Another category of overbilling are the numerous entries for “legal research” regarding matters that an experienced appellate practitioner would need not research or could quickly determine.  For example, on November 6, 2020, Brown billed 1 hour at $700 for “legal research re: deposit for RT on appeal.”  Likewise, Brown billed ½ hour for “legal research re: completion of record” on March 29, 2021.  Brown also billed 2.5 hours for “legal research re: oral argument preparation.”  This charge was separate from his charge of over 55 hours to plan and prepare for oral argument.  Goldstein, too, billed for such legal research.  For example, her entry on May 31, 2020, states: “reviewed BB’s email re questions about transmittal of exhibits for appeal (6 mins); research & emailed BB research results re my understanding of what is required (36 mins).” 

Brown also frequently entered vague entries for his alleged work such as “legal research” without further explanation.  (See entries on 2/8/22, 3/4/22, 10/25/22, 6/13/23.)  Similarly, Goldstein entered many vague descriptions of her communications with others (e.g., “emailed VM reply to her 12/17 email”). 

Plaintiff’s counsel also routinely billed for administrative tasks that many law firms do not include on their invoices.  For example, on March 3, 2021, Brown billed for “telephone conference (Ms. Goldstein) re: appellate attorney.”  Then on January 20, 2022, Brown billed to “Draft/revise Letter to Mr. Lim re: retainer.”  On April 4 and 7, 2020, Goldstein billed to exchange emails with Brown “about and changes to proposed document re appellate work” and “final changes to proposed documents re appellate work.”  In other words, plaintiffs’ counsel is seeking to recover attorney fees from the City for “legal work” done in furtherance of the business arrangements between plaintiff’s appellate counsel. 

Goldstein also routinely billed for administrative tasks.  For example, on November 11 and 13, 2020, she entered charges for “reviewed and replied to BB’s email exchange with ct reporter” and “reviewed email from BB to clerk with attachments.”

Similar excessive billing is apparent throughout Brown’s and Goldstein’s billing records.  The City’s opposition notes that it spent only 938.1 hours on the appeal.  (Walsh Decl., ¶ 2.)  Plaintiff’s reply argues that only amounts to 148.3 fewer hours than the 1,086.40 she claims in this motion.  (Reply, p. 5.)  But that calculation fails to account for plaintiff’s voluntary apportionment of 311.3 hours in fees.  (Motion, p. 9.)  The motion seeks 1,086.40 hours, but plaintiff’s attorneys worked 1397.7 hours on the appeal.  That is nearly 50% more time than defendant’s counsel worked.  The time defendant’s counsel worked on the appeal represents a far more reasonable number of hours.

While the court carefully reviewed the numerous individual entries in plaintiff’s attorneys’ bills before concluding that they routinely billed an excessive amount of time for particular tasks, the court also considered the big picture.  Plaintiff’s attorneys claim they needed to spend nearly 1,400 hours on this appeal.  Assuming a lawyer bills 2,000 hours annually, that is the equivalent of a lawyer working full-time on nothing but this appeal for over eight months.  It strains credulity for plaintiff’s attorneys to claim the number of hours they billed was reasonable.   

Plaintiff also spent excessive time on this fee motion.  She seeks 75 hours for the moving papers (Motion, p. 15), 30 hours for the reply, 8.5 hours for two attorneys to travel the hearing, and 2 hours for those two attorneys to prepare for and attend the hearing (Brown Decl., ¶ 4; Goldstein Decl., ¶ 4).  This motion involved reviewing a significant volume of billing records but did not require substantial legal research.  It is a relatively routine FEHA fee motion of the sort Brown and Goldstein have done many times before.

Seeking to recover 30 hours of fees for the reply papers is an egregious attempt to recover excessive attorney fees.  Goldstein and Brown seek compensation for 15 hours each, but state they worked more than 15 hours each “researching, drafting and finalizing” the brief, “which includes the documents filed in support of the Reply in this matter.”  (Brown Reply Decl., ¶ 3; Goldstein Reply Decl., ¶ 3.)  The reply includes four documents: the brief, declarations by Brown and Goldstein, and evidentiary objections.  The reply brief is only 10 pages.  Much of it is devoted to reiterating arguments stated in the opening brief based on well-worn principles of law.  The two supporting declarations are less than one page each and both are strikingly similar.  Plaintiff made three evidentiary objections.  Spending more than 30 hours (though only seeking to recover 30 hours) constitutes highly inefficient work.  Attorneys of Brown’s and Goldstein’s skill and experience should have spent no more than 8 hours on the reply papers.

Goldstein and Brown also seek excessive and unnecessary fees for traveling to this hearing.  Brown seeks “an additional 5 hours … preparing for and attending the fee hearing, which includes an estimate of four (4) hours travel time to and from the court.”  (Brown Decl., ¶ 4.)  Goldstein claims four hours of travel, plus an additional 30 minutes for travel to and from her residence to Brown’s residence.  (Goldstein Decl., ¶ 4.)  These fees are unreasonable.  Generally, courts only permit one attorney to argue at oral argument.  Reasonable attorneys who did not expect to recover these fees from the opposing party would not bill their client for both attorneys to travel two hours each way to the hearing.  Seeking to recover travel for both attorneys constitutes padding the bill.   

The court has given only a few examples of unreasonable and excessive billing to illustrate an overall practice of inefficient work and padded bills.  There are many more examples of overbilling.  For a “voluminous fee application,” courts may “make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41.)  An appeal of this sort should not take nearly as much time as Brown and Goldstein spent on it.  The court exercises its discretion to cut Brown’s and Goldstein’s hours by 30 percent.  The court will not reduce the hours billed by Lim.

Multiplier

Plaintiff requests the court apply a multiplier of 1.3.  “In FEHA cases, the trial court has the discretion to apply a multiplier or fee enhancement to the lodestar figure to take into account a variety of factors, including the quality of the representation, the novelty and difficulty of the issues presented, the results obtained and the contingent risk involved.”  (Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 426-427.) 

This case did not involve particularly novel or difficult questions.  The relatively high hourly rates the court awarded plaintiff’s counsel adequately account for representation on contingency.  (See Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 395 [“The contingency adjustment may be made at the lodestar phase of the court’s calculation or by applying a multiplier to the noncontingency lodestar calculation (but not both)”].)  Awarding plaintiff attorney fees based on the lodestar figure is appropriate in this case.

Recoverable Attorney Fees

            The court calculates the award as follows:

            The motion is granted in part.  Plaintiff Shirin Buckman shall recover  $691,526.50 in attorney fees on appeal and for this motion from defendant City of Los Angeles. 

IT IS SO ORDERED