Judge: Cherol J. Nellon, Case: 21STCP01473, Date: 2023-10-25 Tentative Ruling


Case Number: 21STCP01473    Hearing Date: October 25, 2023    Dept: 14

Instant Motion

 

Respondent Seno now moves this court for an order awarding him attorney’s fees in the amount of $20,880.00.

 

Decision

 

            The Objection to paragraph 6 of the Declaration of Eugene Lee is SUSTAINED. The conduct of the Labor Commission hearing is irrelevant to this motion. The Objection to Exhibit 1 of the Declaration of Eugene Lee is OVERRULED because it is not an evidentiary objection at all. It is argument.

 

            The motion is GRANTED in part. Respondent Seno is awarded $13,920.00 in fees.

 

Applicable Statute

 

            Labor Code § 98.2 provides, in relevant part, as follows:

 

“(c) If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney's fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.”

 

Discussion

 

Most fee-shifting provisions are designed as rewards for success, to incentivize the filing of meritorious cases that might not otherwise make economic sense. Labor Code § 98.2(c) is the opposite sort of provision. It is designed as a punishment for failure, to keep parties from filing an appeal just to see if a different officer will rule differently. In determining whether a fee award is proper, the question for the court isn’t who succeeded. The question is who didn’t.

 

The provision is also asymmetrical – it gives no specific definition of failure for an employer, but it does give a definition of failure for an employee. An employee only fails if the court awards him nothing after a full hearing on the appeal. Arias v. Kardoulias (2012) 207 Cal.App.4th 1429, 1435-39. An employer, however, remains subject to the ordinary legal definitions that apply in other contexts; it fails if the appeal is dismissed at any point. Arneson v. Royal Pacific Funding Corp. (2015) 239 Cal.App.4th 1275, 1277-80.

 

Petitioner’s appeal was dismissed. Petitioner was therefore unsuccessful. He becomes liable for the fees and costs of the respondent. It is the court’s task to determine what the reasonable fees are.

 

Hourly Rate

 

            Appellate authority requires that the court take the inherent risk of contingency matters into account. Horsford, supra, 132 Cal.App.4th at 394-395. The court may do so in one (and only one) of two ways: by fixing a somewhat larger hourly rate than it otherwise would, or else by awarding a multiplier. Horsford, supra, 132 Cal.App.4th at 394-395. Multipliers are favored in cases that involve novel and difficult issues, call forth extraordinary skill from counsel, and otherwise prevent counsel from attending to other business. See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132. This case involves none of those factors. The court will account for the contingent nature of this litigation by fixing a larger hourly rate than it otherwise would.

 

            Plaintiff’s counsel, Mr. Eugene Lee, requests a billing rate of $800 per hour. That exceeds the rates this court has previously awarded in cases like this. A more usual award from this court would be $650 per hour. Nevertheless, for the reasons given in the preceding paragraph, the court will award Mr. Lee his requested rate of $800 per hour.

 

Hours Expended

 

            Review of the bill presented as Exhibit 1 to the Declaration of Eugene Lee reveals nothing objectionable. Petitioner suggests that counsel should have spent four total hours on the ex parte application and fee motion, rather than the eight which appear on the bill. But spending two hours to draft ex parte application is eminently reasonable, as is spending six hours (from start to finish) on a fee proceeding. Petitioner’s criticism of counsel for billing so-called “clerical” tasks is likewise misplaced. These tasks must be done, and there is no indication that Mr. Lee has a staff qualified to do them. No reduction will be made in the hours requested by counsel.

 

Conclusion

 

            Because Petitioner’s appeal was dismissed, Petitioner is unsuccessful within the meaning of Labor Code § 98.2(c). The motion is GRANTED, in part. Respondent Seno is awarded $13,920.00 in fees.