Judge: Barbara M. Scheper, Case: 19STCV09932, Date: 2024-10-04 Tentative Ruling
Case Number: 19STCV09932 Hearing Date: October 4, 2024 Dept: 30
Dept. 30
Calendar No.
Verceles vs. Los
Angeles Unified School District, et. al., Case No. 19STCV09932
Tentative Ruling
re: Defendant’s Motion for Attorney’s
Fees or Cost of Proof Sanctions
Los Angeles Unified School District
(Defendant) moves for an award of attorney’s fees and costs against Junnie
Verceles (Plaintiff). The motion is granted in part. Attorney’s fees and costs are
awarded to Defendant in the amount of $94,411.
“[A]s a general rule, attorney fees
are not recoverable as costs unless they are authorized by statute or
agreement.” (People ex rel. Dept. of
Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th
424, 429.) In actions under the Fair Employment and Housing Act (FEHA), “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).) Thus, a prevailing Defendant may successfully recover attorney’s
fees if it can show that the action was frivolous when brought. (Cummings v.
Benco Bldg. Services (1992) 11 Cal.App.4th 1383.)
Additionally, “[i]f a party fails
to admit the genuineness of any document or the truth of any matter [in
response to a request for admissions], and if the party requesting that
admission thereafter proves the genuineness of that document or the truth of
that matter, the party requesting the admission may move the court for an order
requiring the party to whom the request was directed to pay the reasonable
expenses incurred in making that proof, including reasonable attorney’s fees.”
(Code Civ. Proc., 2033.420, subd. (a).” However, the party requesting admission
is not entitled to fees if the admission sought was of no substantial
importance, the party failing to make the admission had reasonable ground to
believe they would prevail, or there was another good reason for the failure to
admit. (Id. § 2033.420, subds. (b)(2)–(4).)
The
attorney bears the burden of proof as to “reasonableness” of any fee claim.
(Code Civ. Proc., § 1033.5, subd. (c)(5).) This burden requires competent
evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d
553, 559.) “Testimony of an attorney as to the number of hours worked on a
particular case is sufficient evidence to support an award of attorney fees,
even in the absence of detailed time records.” (Ibid.)
A
party’s verified billing invoices are prima facie evidence that the costs,
expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d
677, 682.) “In challenging attorney fees as excessive because too many hours of
work are claimed, it is the burden of the challenging party to point to the
specific items challenged, with a sufficient argument and citations to the evidence.
General arguments that fees claimed are excessive, duplicative, or unrelated do
not suffice.” (Lunada Biomedical v. Nunez
(2014) 230 Cal.App.4th 459, 488, quoting Premier
Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163 Cal.App.4th 550, 564.)
In determining whether the requested
attorney’s fees are “reasonable,” the Court’s “first step involves the lodestar
figure—a calculation based on the number of hours reasonably expended
multiplied by the lawyer’s hourly rate. The lodestar figure may then be
adjusted, based on consideration of facts specific to the case, in order to fix
the fee at the fair market value for the legal services provided.” (Gorman v. Tassajara Development Corp.
(2008) 162 Cal.App.4th 770, 774 [internal citations omitted].) In determining
whether to adjust the lodestar figure, the Court may consider the nature and
difficulty of the litigation, the amount of money involved, the skill required
and employed to handle the case, the attention given, the success or failure,
and other circumstances in the case. (EnPalm
LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
Defendant moves for an award of attorney’s
fees in the amount of $295,503 pursuant to Government Code section 12965,
subdivision (c)(6). Alternatively, Defendant requests cost of proof sanctions
in the amount of $94,411 pursuant to Code of Civil Procedure section 2033.420,
subdivision (a).
Defendant is not
entitled to fees under Government Code section 12965.
Defendant moves for an award of attorney’s
fees on the ground that Plaintiff’s entire action was frivolous when
instituted. To win an award under section 12965, subdivision (c)(6) based on
the frivolousness of the plaintiff’s case, the defendant must show that “the
plaintiff brought or continued litigating the action without an objective basis
for believing it had potential merit.” (Lopez v. Routt, 17
Cal.App.5th 1006, 1011.) An action is not frivolous simply because plaintiff’s
claim failed. (Baker v. Mulholland
Security & Patrol, Inc. (2012)
204 Cal.App.4th 776, 784.)
Here, Defendant asserts that
Plaintiff admitted in his deposition that he sought to end his teacher
dismissal hearing before it began because he believed he would be unsuccessful,
thus barring any future civil claim on res judicata grounds. Defendant argues
that such an admission demonstrates that Plaintiff did not believe his suit had
any merit when he brought it. Plaintiff argues that this statement is
misconstrued. Plaintiff contends that he sought to ensure he had access to
comprehensive discovery and feared that an adverse decision at an
administrative hearing would preclude that possibility. Plaintiff’s assertion
is reasonable. Thus, Defendant has not demonstrated that Plaintiff’s case was
frivolous based on his deposition testimony.
Defendant also argues that the
granting of its Anti-SLAPP motion, later overturned on appeal, demonstrates
that Plaintiff’s lawsuit was frivolous. In that ruling, the Court determined
that Plaintiff lacked evidence to support his claims. However, success on an
Anti-SLAPP motion, at an early posture in a case before discovery is complete,
does not itself show that a case is frivolous. Moreover, that ruling was later
overturned on appeal.
Finally, Defendant argues that
Plaintiff’s case is frivolous because Plaintiff failed to survive summary
judgment after five years of litigation. It is true that Plaintiff has amended
his pleadings numerous times after sustained demurrers and opposed all of Defendant’s
dispositive motions. However, unsuccessfully prosecuting a case does not
demonstrate that the case started as, or later became, frivolous as Defendant
suggests. Defendant does not win attorney’s fees simply because Plaintiff lost
his case. (Robert v. Stanford University (2014) 224 Cal.App.4th 67, 70.)
The length of Plaintiff’s case is in part attributable to the multiple
Anti-SLAPP motions and appeals. Awarding attorney’s fees to defendants in
long-lived cases would create perverse incentives for defendants and make it
riskier for plaintiffs to fully prosecute cases under FEHA. Indeed, “assessing
attorney’s fees against plaintiffs simply because they do not finally prevail
would substantially add to the risks inhering in most litigation and would
undercut the efforts of Congress to promote the vigorous enforcement of the
provisions of Title VII.” (Cummings, supra, at p. 1388.)
Thus, Defendant has not shown that
Plaintiff brought or continued prosecuting his action without an objective
basis for believing it had potential merit. Accordingly, Defendant’s request
for attorney’s fees under Government Code section 12965, subdivision (c)(6) is
denied.
Defendant is
entitled to cost of proof sanctions.
Defendant alternatively moves for an
award of cost of proof sanctions under Code of Civil Procedure section
2033.420, subdivision (a). A party is entitled to fees under this provision if
it proves a document’s genuineness or matter’s truth and the opposing party had
failed to admit such when responding to an earlier request for admission. (Code
Civ. Proc., § 2033.420, subd. (a).) A party may prove genuineness or truth
through a successful motion for summary judgment. (Barnett v. Penske Truck
Leasing (2001) 90 Cal.App.4th 494, 498.) However, sanctions are not to be
awarded if the admissions sought were of no substantial importance or the party
failing to make the admissions had reasonable ground to believe it would
prevail. (Id., § 2033.420, subd. (b)(2), (3).) The party seeking to
avoid sanctions has the burden of showing an exception applies. (Samsky v.
State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 523.)
A discussion of the procedural
history of the case is instructive here.
Plaintiff filed his complaint on March 21, 2019. Defendant filed its first Anti-SLAAP motion
on June 4, 2019, thus staying discovery.
The motion was granted on June 29, 2019.
Plaintiff appealed. The Court of
Appeals reversed, and the matter was returned to the trial court on July 16,
2021. After Plaintiff filed his amended
complaint, Defendant filed a second Anti-SLAAP motion on November 3, 2021,
again staying discovery. The Court
denied the motion and Defendant appealed.
The Court of Appeals affirmed the Court’s ruling, and the matter was
returned to the trial court on December 20, 2023.
Shortly thereafter, Defendant served
Plaintiff with ten requests for admission which Plaintiff denied for the most
part on February 9, 2024. Plaintiff sat
for his deposition on February 28, 2024.
On May 13, 2024, Defendant filed its motion for summary judgment
directed to the only remaining cause of action for retaliation in violation of
FEHA. The hearing on the motion was
scheduled for July 30, 2024. On July 8,
2024, Plaintiff applied ex parte for a continuance of the summary judgment
hearing citing a need to conduct discovery.
The Court denied the ex parte on the grounds that Plaintiff had failed to
satisfy the requirements of CCP Section 437c(h).
CCP Section 437c(h) provides: “If it appears from the affidavits submitted
in opposition to a motion for summary judgment or summary adjudication, or
both, that facts essential to justify opposition may exist but cannot, for
reasons stated, be presented, the court shall deny the motion, order a
continuance to permit affidavits to be obtained or discovery to be had, or make
any other order as may be just.”
The
declaration or affidavit in support of the request to continue must describe
the discovery that is necessary to resist the motion. (See Frazee v. Seeley (2002) 95
Cal.App.4th 627, 634-635.) It
is not sufficient merely to indicate that further discovery or investigation is
contemplated. (Bahl v. Bank of
America (2001) 89 Cal.App.4th 389, 396-397.) The declaration or affidavit must also make a
good faith showing demonstrating that a continuance is necessary to obtain
essential facts to oppose the motion.
The declaration should show (1) facts that establish a likelihood that
controverting evidence may exist and why the information sought is essential to
opposing the summary judgment motion, (2) specific reasons why this evidence
cannot be presented at the present time, (3) an estimate of the time necessary
to obtain this evidence, and (4) the specific steps or procedures that the
party opposing the summary judgment motion intends to use to obtain this
evidence. (Johnson v. Alameda County.
Med. Ctr. (2012) 205 Cal.App.4th 521, 532.)
In
exercising discretion under CCP Section 437c(h), a judge may properly consider
the extent to which the requesting party’s failure to secure the contemplated
evidence results from this party’s lack of diligence. (Rodriquez v. Oto (2013) 212 Cal.App.4th
1020, 1038.) A good faith showing that
further discovery is needed to oppose summary judgment requires some
justification as to why this discovery was not completed sooner. (Cooksey v. Alexakis (2004) 123
Cal.App.4th 246, 257; Bushling v. Fremont Med. Ctr. (2004)
117 Cal.App.4th 493, 511-512.)
Plaintiff’s counsel’s declaration
in support of the ex parte stated only that he had just served written
discovery in June of 2024, had not received responses and had not noticed any
depositions. Plaintiff offered no
explanation as to the evidence he believed existed or the depositions he wished
to take. Plaintiff did not address why
he had not conducted this discovery sooner.
Plaintiff filed an untimely
opposition to the motion for summary judgment but did not submit any evidence. The Court granted the motion on July 30,
2024.
Turning to the requests for admissions, Plaintiff denied nine of the
ten. In particular, in request number 7,
Plaintiff was asked to admit that he had no evidence to establish any
retaliatory animus held by anyone at LAUSD towards Plaintiff Verceles for
engaging in any activity protected by the Fair Employment and Housing Act. Plaintiff denied this. Yet weeks later he testified in deposition
that he did not know or could not remember if anyone involved in the decision
to terminate him even knew that he had filed a complaint with the DFEH.
Defendant successfully proved the truth of this request when the Court
granted summary judgment on Plaintiff’s retaliation claim. Accordingly, absent a showing by Plaintiff of
an applicable exception, Defendant is entitled to fees.
Plaintiff does not argue that an
exception applies. Rather, Plaintiff contends that the requests for admissions
themselves were improper, citing Universal Home Improvement, Inc. v.
Robertson (2020) 51 Cal.App.5th 116 and Pappas v. Carolyn Chang
(2022) 75 Cal.App.5th 975.
In Universal Home, the court
took issue with defendants serving requests for admissions at the start of a
case seeking responses admitting that the plaintiff had no case, and later
seeking to recover costs of proof fees when the plaintiff proved unsuccessful
at trial. (Universal Home, supra at p. 130.) The court refused to
award fees because the requests for admissions were vigorously contested at
trial and because the defendants’ motion did not even refer to the trial court
record. (Id. at p. 631.)
Here, Plaintiff’s responses to Defendant’s requests for admissions were
served in February 2024 – almost five years after the action was
commenced. It is true that the action
was stayed for significant periods of time as a result of the two Anti-SLAAP
motions and subsequent appeals – the Court calculates that discovery was open
for approximately one year in total over
the life of the case. The Court also
notes that the parties exchanged information and documents in connection with
Plaintiff’s Skelly hearing that predated the filing of the lawsuit.
In addition, Plaintiff was deposed on February 28, 2024, less than a
month after denying Defendant’s RFAs.
Plaintiff testified he had no knowledge or information demonstrating or
even suggesting that anyone involved in the decision to terminate him even knew
he had engaged in alleged protected activity by filing a complaint with the
DFEH.
Finally, on July 8, 2024, Plaintiff applied ex parte for a continuance
of the hearing on the motion for summary judgment then scheduled for July 30,
2024. Plaintiff’s counsel’s declaration
utterly failed to demonstrate any valid basis for a continuance.
Based on the foregoing, this case is
distinguishable from Universal Home and Pappas and therefore an
award of fees and costs is appropriate.
Fee Calculation
Requested rates are reasonable if
they are “within the range of reasonable rates charged by and judicially
awarded comparable attorneys for comparable work.” (Children’s Hospital
& Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783.) In
calculating the lodestar rate, “the court may rely on its own knowledge and
familiarity with the legal market, as well as the experience, skill, and
reputation of the attorney requesting fees [Citation], the difficulty or
complexity of the litigation to which that skill was applied [Citations], and
affidavits from other attorneys regarding prevailing fees in the community and
rate determinations in other cases. [Citation.]” (569
East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)
Defendant
alleges that a reasonable award of fees under Code of Civil Procedure section
2033.420, subdivision (a) would be $94, 411. This includes $89,832 for attorney
time and an additional $4,579 for the court reporting costs incurred while
taking Plaintiff’s deposition. (Bejarano Decl. ¶ 13.) Defendant contends this
deposition was critical for proving that Plaintiff’s denials were not
reasonable. (Ibid.) Plaintiff argues that Defendant does not provide a
declaration or billing statement describing the work done to justify such an
award.
Defendant’s
counsel provides a declaration claiming that he has spent 152 hours since the
denial of the requests for admissions to prove the matters within them as true.
(Id. ¶ 10.) Defendant also contends that the Court has previously
approved a $591 billing rate. (Id. ¶ 8.) A lodestar calculation using
this hourly rate gives $89,832 in attorney’s fees. The declaration offered by
defense counsel is sufficient to support such an award. (Martino, supra,
at p. 559.)
Accordingly, for 152 hours at a rate
of $591 per hour, the Court awards attorney’s fees in the amount of $89,832, and an additional $4,579 in costs
associated with taking Plaintiff’s deposition, totaling $94,411.