Judge Daniel M. Crowley, Case Number: 21STCV12073, Date: 2024-03-07 Tentative Ruling

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Plaintiff Elizabeth Escobar (“Escobar”) (“Plaintiff”) moves for an order awarding her attorneys’ fees and costs against Defendants Los Cipotes Salvadorean Grill (“Grill”) and Los Cipotes Restaurant Bakery (“Bakery”) (collectively, “Los Cipotes”). (Notice of Motion, pgs. i-ii.) Plaintiff requests fees and costs in the amount of $678,946.99. (Notice of Motion, pg. i; Gov. Code §12965(b); CRC, Rule 3.1702.)

Los Cipotes’ 2/20/24 request for judicial notice of (1) Guerrero v. Pendleton 2024 U.S. Dist. LEXIS 18296* (D-RJN, Exh. A); and (2) Marcias v. Lange 2017 U.S. Dist. LEXIS 86901* (D-RJN, Exh. B), is granted.

Los Cipotes’ 2/20/24 request for judicial notice of “Legal Trends Report 2023” Published by Themis Solutions, Inc. (D-RJN, Exh. C), is denied.

Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. . . . The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.

CRC, Rule 3.113(g) provides, “[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”

Plaintiff’s motion violates CRC, Rule 3.1113(d) because it is sixteen pages long and therefore exceeds the page limits of these rules. Plaintiff’s overlong motion is filed and considered in the same manner as a late-filed paper. The Court in its discretion will consider Plaintiff’s motion.

On March 30, 2021, Plaintiff filed her Complaint against Defendants Los Cipotes and Carlos Mendez Mejia (“Mejia”) (collectively, “Defendants”) for seventeen causes of action: (1) Assault; (2) Battery; (3) Sexual Battery; (4) Discrimination; (5) Harassment; (6) Retaliation; (7) Failure to Prevent Discrimination, Harassment, and Retaliation; (8) Declaratory Judgment; (9) Wrongful Constructive Termination; (10) Intentional Infliction of Emotional Distress; (11) Failure to Pay Wages; (12) Failure to Pay Overtime Compensation; (13) Failure to Provide Meal and Rest Periods; (14) Failure to Provide Itemized Wage Statements; (15) Waiting Time Penalties; (16) Unfair Competition; and (17) Failure to Permit Inspection of Personnel and Payroll Records.

This action came on for a jury trial on August 30, 2023. The jury returned their verdict in favor of Plaintiff in the amount of $223,327.60 on the 1st, 4th, 5th, 7th, 9th, 10th, 12th, 13th, 14th, and 17th causes of action. (10/12/23 Judgment.) The Judgment states Plaintiff shall recover her costs and reasonable attorneys’ fees from Defendant Mejia doing business as Los Cipotes. (10/12/23 Judgment.)

On November 2, 2023, Plaintiff filed a memorandum of costs. On December 12, 2023, Plaintiff filed the instant motion. On February 20, 2024, Los Cipotes filed an opposition. On February 29, 2024, Plaintiff filed her reply.

Defendant objects to Plaintiff’s motion on the basis the motion was filed beyond the 60 days from the filing of the judgment in this action. Defendant argues the Judgment was filed on October 12, 2023, and Plaintiff’s motion was not filed until December 12, 2023, with the sixtieth day being December 11, 2023. In light of the fact that Plaintiff’s motion was untimely filed by one day, the Court in its discretion will consider Plaintiff’s motion.

A party may not recover attorneys’ fees unless allowed by contract or statute. (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464; C.C.P. §1021.)

California’s Fair Employment and Housing Act (“FEHA”) establishes matters of “fundamental public policy” of our state. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277.) To ensure that the important public policies behind the FEHA are adequately vindicated through private enforcement actions, FEHA directly provides for recovery of statutory attorneys’ fees and enhanced litigation costs. (See Gov. Code §12965(c)(6).)

Here, Plaintiff is entitled to recover attorneys’ fees and costs as the prevailing party in this case pursuant to Gov. Code §12965(c)(6) and the Judgment issued by this Court. Accordingly, Plaintiff’s motion for attorneys’ fees is proper.

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by Plaintiff’s counsel. The Supreme Court of California has concluded that a reasonable hourly lodestar rate is the prevailing rate for private attorneys “conducting non-contingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) “The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.)

Plaintiff’s Counsel declares the following hourly rates in this matter: (1) Kaveh Elihu ($1,000/hour); (2) Sylvia Panosian ($700/hour); (3) Daniel J. Friedman ($750/hour); (4) Melad N. Haddad ($400/hour); (5) Mark Rojas (Paralegal, $300/hour); (6) Rene Gonzalez-Pacheco (Paralegal, $300/hour); (7) Samuel J. Moorhead ($650/hour); (8) David C. Hopper ($550/hour); (9) Nayri Jilzian ($650/hour); (10) Jose Valdez ($450/hour); (11) Christopher DeClue ($650/hour); and (12) paralegals/legal assistants ($125-$175/hour). (Decl. of Elihu ¶¶19-21, Exh. F; Decl. of Panosian ¶50; Decl. of Friedman ¶5; Decl. of Haddad ¶¶5-6; Decl. of Rojas ¶¶5-9; Decl. of Gonzalez-Pacheco ¶¶6-7; Decl. of Moorhead ¶¶3-7.)

Los Cipotes’ opposition to Plaintiff’s request for fees as unreasonable is unavailing and their argument not supported by case law. Los Cipotes takes merely argues Plaintiff’s counsel did not place their client in a better position after trial compared to the original settlement amount. (Opposition, pg. 9.) Plaintiff prevailed on eleven of the seventeen causes of action alleged in her Complaint despite Los Cipotes’ delay tactics before and during trial. (See Decl. of Panosian.)

Based on the Court’s experience, Plaintiff’s Counsel’s hourly rates are reasonable in their community of practice, specialized area of law, and the difficulty and complexity of the issues presented in Plaintiff’s case.

The verified time entries of the attorneys are entitled to a presumption of credibility, which extends to an attorney’s professional judgment as to whether time spent was reasonably necessary to the litigation. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [“We think the verified time statements of the attorney as officers of the court are entitled to credence in the absence of a clear indication the records are erroneous.”].) “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court’s own view of the number of hours reasonably spent.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698-699.)

Plaintiff’s counsel provides the following hours billed: (1) Kaveh Elihu (39.1 hours); (2) Sylvia Panosian (234.1 hours); (3) Daniel J. Friedman (6.7 hours); (4) Melad N. Haddad (22.1 hours); (5) Samuel J. Moorhead (77.3 hours); (6) David C. Hopper (4.8 hours); (7) Nayri Jilzian (2.1 hours); (8) Jose Valdez (2.2 hours); (9) Christopher DeClue (0.6 hours); and (10) paralegals/legal assistants (177.7 hours). (Decl. of Panosian ¶49, Exh. 1.)

Here, the declaration by counsel of the time incurred on the instant case demonstrates the reasonableness of billed hours, which totals 566.7 hours, with 389.0 hours billed by attorneys and 177.7 hours billed by legal support staff. (Decl. of Panosian ¶49, Exh. 1.)

Accordingly, Plaintiff’s billed hours in the total of $323,105.00 are reasonable.

CRC, Rule 3.1700(b)(1) provides “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (CRC, Rule 3.1700(b)(1).)

“After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.” (CRC, Rule 3.1700(b)(4).)

Plaintiff filed a memorandum of costs on November 2, 2023. Pursuant to CRC, Rule 3.1700(b)(4), the time to file a motion to strike or tax costs has passed; therefore, the clerk must enter the costs on the judgment.

Plaintiff Counsel’s requests a 2.0 lodestar multiplier to their attorneys’ fees of $323,105.00, for the total of $646,210.00. (Motion, pg. 16.) Several factors may be considered in determining whether to augment the fee award, including but not limited to, the (1) novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the result obtained by the litigation; (5) the quality of the representation; and (6) any delay in receipt of payment. (Ketchum, 24 Cal.4th at pgs. 1132-1134; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321-22; City of Oakland, 203 Cal.App.3d at pg. 83; Downey Cares v. Downey Community Development Commission (1987) 196 Cal.App.3d 983, 995 n.11.)

The Court finds that Plaintiff’s underlying request for attorneys’ fees adequately takes into account all the considerations for a multiplier, and therefore the Court denies the request that a multiplier be applied to the request.

Plaintiff’s motion for attorneys’ fees is granted in the amount of $323,105.00 in attorneys’ fees (without multiplier) and costs of $32,736.99.

Accordingly, Plaintiff’s motion is granted in the total amount of $355,841.99.

Hon. Daniel M. Crowley

Judge of the Superior Court