Judge: Cynthia A Freeland, Case: 37-2021-00005222-CU-OE-NC, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 17, 2023

08/18/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2021-00005222-CU-OE-NC WILSON VS ICON BUILDING SUPPLIES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 05/05/2023

Plaintiff Rodney Wilson ('Plaintiff')'s motion for attorneys' fees and costs is granted.

On February 4, 2021, Plaintiff commenced this action by filing a Complaint against Defendant ICON Building Supplies, Inc. dba ICON Utility Services ('Defendant') for violation of California Government Code ('CGC') § 12952, the Fair Chance Act (the 'FCA'). See ROA No. 1. Plaintiff alleged, inter alia, that: ICON maintains illegal general policies and practices as they relate to compliance with the Fair Chance Act, including, inter alia, by: (1) excluding members of the public, including but not limited to Mr. Wilson, from employment based on criminal history, citing excuses such as customer preference; (2) failing to follow the procedures set forth at Government Code § 12952(c) when ICON intends to deny an applicant a position of employment solely or in part because of the applicant's conviction history; and (3) incorrectly claiming an exemption to the Fair Chance Act.

Ibid., ¶ 13. As an example of this purportedly illegal practice, Plaintiff contended that his criminal history was a substantial motivating factor in Defendant's decision not to proceed with his employment and that Defendant failed to comply with the FCA's requirements as set forth in CGC § 12952. Ibid., ¶ 14. To redress these allegedly illegal actions, Plaintiff initially sought, among other relief, general and compensatory damages, including emotional distress damages, special damages, punitive damages, and declaratory and injunctive relief. Ibid., p. 5, l. 19 - p. 6, l. 5.

As of the time of trial, Plaintiff no longer sought damages, compensatory or punitive, and instead pursued only declaratory and/or injunctive relief on his own behalf. Indeed, no evidence was produced in connection with Plaintiff's initial allegation that Defendant 'maintains illegal general policies and practices as they relate to compliance with the Fair Chance Act,' and the court concluded that Plaintiff failed to demonstrate the existence of such alleged 'illegal general policies and practices.' After a bench trial, and pursuant to the terms of a Stipulation and subsequent order thereon, the court issued a Statement of Decision, which became final on April 20, 2023. See ROA No. 122. By way of the Statement of Decision, Plaintiff secured declaratory relief, but was unsuccessful in his pursuit of injunctive relief.

CGC § 12965(b) provides, in pertinent part, that '[i]n actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.' Although the statute is styled with permissive language, a prevailing plaintiff, unlike a prevailing defendant, is entitled to fees 'absent circumstances that would render the award unjust.' Calendar No.: Event ID:  TENTATIVE RULINGS

2969655 CASE NUMBER: CASE TITLE:  WILSON VS ICON BUILDING SUPPLIES INC [IMAGED]  37-2021-00005222-CU-OE-NC Stephens v. Coldwell Banker Comm'l Group, Inc. (1988) 199 Cal. App. 3d 1394, 1406.

Initially, Defendant contends that case law supports the denial of attorneys' fees when a plaintiff recovers less than the jurisdictional limit for unlimited civil cases, such as the case here. For this proposition, Defendant relies on Chavez v. City of Los Angeles (2010) 47 Cal 4th 970 ('Chavez'), in which the California Supreme Court noted that 'the plaintiff's failure to take advantage of the time-and cost-saving features of the limited civil case procedures may be considered a special circumstance that would render a fee award unjust.' Ibid., at 986. Defendant's reliance on Chavez, however, is misplaced.

A plaintiff may only initiate an action under the limited civil case procedures if the relief sought is of a type that may be granted in a limited civil case. See Cal. Code Civ. P. § 85(b). Toward this end, California Code of Civil Procedure ('CCP') § 580 provides that 'the following types of relief may not be granted in a limited civil case: . . . (2) A permanent injunction, except as otherwise authorized by statute .

. . . (4) Declaratory relief, except as authorized by Section 86.' Cal. Code Civ. P. § 580(b) (emphasis added). CCP § 86 permits a litigant to seek declaratory relief in a limited civil action only for certain indemnity claims and attorney fee arbitrations, neither of which is at issue in this case. See Cal. Code Civ. P. § 86(a)(7). Given that Plaintiff, by way of the operative pleading, sought declaratory as well as injunctive relief, in addition to his initial request for damages, Plaintiff could not have pursued his claim as a limited civil case. Consequently, contrary to Defendant's contention, the Chavez holding does not warrant a denial of the present motion.

Additionally, albeit in passing and without citation to any legal authority, Defendant contends that '[a]rguably, ICON is the prevailing party as they successfully defeated claims in excess of $25,000 and debunked a claim that this litigation was protecting the public at large because ICON had a custom and practice of denying any applicant with a criminal background.' See Defendant's Opposition, p. 5, ll. 2-4.

The court must respectfully disagree with this assertion.

Notably, a plaintiff 'prevails' when he or she succeeds 'on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.' Hensley v. Eckerhart (1983) 461 U.S.

424, 433. As has been explained, a plaintiff's failure to secure an award of damages does not mean that the plaintiff cannot be deemed the 'prevailing party.' As the California Supreme Court held in Harris v. City of Santa Monica (2013) 56 Cal.4th 203: . . . the unavailability of damages upon an employer's same-decision showing does not make a finding of unlawful discrimination an empty gesture. Such a finding has several key consequences. First, proof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may serve to reaffirm the plaintiff's equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices. (See Code Civ. Proc., § 1060 [a court may make a binding declaration of contested rights and duties].) Ibid., at 234.

In this case, while it is true that Plaintiff did not secure monetary damages and was unsuccessful in his pursuit of injunctive relief, he did succeed in obtaining a declaration that: (1) Plaintiff was entitled to ICON's strict compliance with all of the notice and interactive processes set forth in CGC § 12952(c) when ICON decided to rescind the Conditional Offer based in part on Plaintiff's felony conviction in Case No. SCN372117, even though Plaintiff volunteered that information directly to ICON; (2) ICON violated Plaintiff's rights under CGC § 12952(c) by rescinding the Conditional Offer without strictly complying with CGC § 12952(c), including failure to issue a fully Code-compliant written preliminary notice, failure to provide Plaintiff with five business days to respond, with evidence if he so chose, to the preliminary notice, and failure to issue a written notice of final decision as required by the Calendar No.: Event ID:  TENTATIVE RULINGS

2969655 CASE NUMBER: CASE TITLE:  WILSON VS ICON BUILDING SUPPLIES INC [IMAGED]  37-2021-00005222-CU-OE-NC FCA; and (3) Neither ICON nor the position conditionally offered to Plaintiff was exempt from the FCA pursuant to CGC § 12952(d) See ROA No. 122. Toward this end, Plaintiff secured a benefit sought by way of the litigation and is the 'prevailing party.' Therefore, Plaintiff is entitled to reasonable attorneys' fees and costs under CGC § 12965(b).

'[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . . The lodestar figure may then be adjusted, 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.' Ketchum v. Moses (2011) 24 Cal. 4th 1122, 1134. Plaintiff, as the party seeking an award of attorney's fees and costs, 'bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hours rates.' ComputerXpress, Inc. v. Jackson (2001) 93 Cal. App. 4th 993, 1020.

In determining a reasonable hourly rate, the court must consider the prevailing market rates in the relevant community, which typically means comparable attorneys' rates in the forum district. See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 1009. The court should consider the requesting attorney's experience, skill, and reputation, and may also rely upon its own knowledge and familiarity with the legal market. Ibid. In addition, the court can review attorney affidavits regarding prevailing fees in the community and rate determinations in other cases. Ibid. The difficulty or complexity of the litigation is also a relevant factor. See Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691, 700.

Defendant does not take issue with Plaintiff's counsel's hourly rate or the hourly rates of his staff. In addition, the court finds that Plaintiff's counsel's hourly rate of $440.00 is appropriate for someone with Plaintiff's counsel's experience and skills. Plaintiff's counsel's hourly rate, as well as the rates of his staff, are also consistent with the court's understanding of the prevailing market rate for similarly situated attorneys and legal professionals in the San Diego legal community.

To the extent that Plaintiff's counsel seeks an upward multiplier, the court respectfully declines to grant such an enhancement. While there may not be a plethora of case law dealing with the FCA, which left counsel to litigate an issue that has not been definitively resolved by existing legal precedent, the issues litigated in this case were not particularly difficult or complex. Additionally, based on the court's understanding of the prevailing rates in the legal community, Plaintiff's counsel's hourly rate of $440.00 and his staff's hourly rate of $130.00 are sufficient to account for the risks involved in pursuing such a case.

In addition to determining a reasonable hourly rate, the court also must assess independently the reasonableness of the time spent. Toward that end, verified time statements are entitled to credence absent a clear indication that the records are erroneous. See City of Colton v. Singletary (2012) 206 Cal. App. 4th 751, 785. However, the billing statements merely form the basis for the hours reasonably expended and the court may reduce the number of hours if it concludes that Plaintiff's counsel's efforts were unnecessary, duplicative, or excessive in light of the issues fairly presented. See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426.

The court has reviewed carefully the bills submitted by Plaintiff. In so doing, the court has concluded that there are a number of entries for which compensation is not reasonable and/or that appear to be duplicative. For example, Defendant should not be compelled to pay Plaintiff's counsel's travel time to Plaintiff's deposition that did not proceed because of Plaintiff's own arrest (see August 1, 2022 Time Entry). Additionally, Plaintiff's counsel acknowledges that because of Plaintiff's failure to appear for his deposition, the hearing on the parties' respective dispositive motions had to be continued, thus requiring additional unnecessary work. See Escobedo Decl., ¶ 30.

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2969655 CASE NUMBER: CASE TITLE:  WILSON VS ICON BUILDING SUPPLIES INC [IMAGED]  37-2021-00005222-CU-OE-NC Moreover, Plaintiff's counsel billed time for 'status report to client' on both February 12 and February 13, 2021 (0.2 hours each day) notwithstanding the fact that there are no other time entries for those two days to suggest the need for two different status reports one day apart. It also does not appear reasonable that Ms. Mercado, a non-attorney, spent 6.25 hours 'provid[ing] assistance in the deposition of ICON – Leonard Campos' (see two entries on November 10, 2021). Additionally, Plaintiff's counsel has somewhat duplicative entries for time spent preparing for the case management conference (see December 8 and 9, 2021 entries). As Plaintiff's counsel caused a motion for summary adjudication to be filed, there was no need for Plaintiff's counsel to 'review filed-endorsed moving papers in support of summary adjudication motion.' See May 24, 2022 Time Entry. Finally, there was no reason for Plaintiff's counsel to review the docket regarding the status of the court's Statement of Decision, which was mail served on all counsel on March 24, 2023. See ROA No. 118.

Additionally, and perhaps more significantly, to the extent that Plaintiff dedicated resources to the pursuit of compensatory damages after being provided with the SDG&E contract, such pursuit became unreasonable given that it would have been apparent from said contract that Defendant could not have hired Plaintiff regardless of whether it strictly complied with the FCA. The court, however, has not been provided sufficient information to be able to ascertain what percentage of Plaintiff's counsel's work was attributed to said damages pursuit. Based on the foregoing, the court grants Plaintiff's request for attorneys' fees in the amount of $ 81,162.10. Plaintiff also seeks $6,585.22 in costs under CGC § 12965(c)(6). Defendant, for its part, does not challenge the propriety of those costs.

In light of the foregoing, the court grants the motion and awards Plaintiff $81,162.10 in attorneys' fees and $6,585.22 in costs, for a total of $87,747.32.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 18, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 18, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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