Judge: Daniel M. Crowley, Case: 21STCV22368, Date: 2024-07-09 Tentative Ruling

Case Number: 21STCV22368    Hearing Date: July 9, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Theodore Faye’s motion for attorneys’ fees is granted in the total reduced amount of $1,269,893.26, comprised of $1,196.687.50 in attorneys’ fees and $73,205.76 in costs.

Plaintiff Theodore Faye (“Faye”) (“Plaintiff”) moves for an order awarding him attorneys’ fees in the total amount of $2,100,268.14, plus 7% interest from the date of judgment, comprised of (1) the lodestar amount of $1,161,647.50 for 1592 hours incurred; (2) a multiplier of 1.75; and (3) costs in the amount of $67,385.91.  (Notice of Motion Fees, pgs. i-ii; C.C.P. §1021.5; Govt. Code §12965(b).) 

Evidentiary Objections

Plaintiff’s 7/1/24 evidentiary objections to the Declaration of Jack M. Schuler (“Schuler”) are sustained as to Nos. 1, 2, 3, and 4.

          Request for Judicial Notice

          Plaintiff’s 7/1/24 request for judicial notice of (1) The December 22, 2020, United States District Court Northern District of California Order on Motion for Attorney Fees and Costs in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, (N.D. Cal., Dec. 22, 2020, No. 16-cv-00236-

WHO); and (2) The April 7, 2011, United States District Court Northern District of California Order Granting in Part and Denying in Part Plaintiff’s Motion for Attorneys’ Fees and Costs in Stonebrae, L.P. v. Toll Bros., Inc. (N.D. Cal., Apr. 7, 2011, No. C-08-0221 EMC), at *23 aff’d 521 Fed.Appx. 592 (9th Cir. 2013)

is denied as not relevant.

Background

This is a FEHA case involving claims of disability discrimination, failure to accommodate, retaliation, and failure to engage in the interactive process, violations of the Labor Code, interference with the California Family Rights Act (“CFRA”), and a cause of action under PAGA (C.C.P. §1021.5).  This matter came on regularly for a jury trial from February 5, 2024, to February 20, 2024.  On February 20, 2024, the jury returned a special verdict in favor of Plaintiff, awarding him $915,281.00 in damages.  Judgment was entered on March 20, 2024. 

On March 27, 2024, Plaintiff filed his memorandum of costs.  On April 16, 2024, Plaintiff filed an amended memorandum of costs.  On May 22, 2024, Plaintiff filed this motion for attorneys’ fees.  Defendant filed its opposition on June 25, 2024.  Plaintiff filed his reply on July 1, 2024. 

Discussion

FEHA provides that the “court, in its discretion may award to the prevailing party. . . reasonable attorney fees.”  (Govt. Code §12965(c)(6).) 

Here, Plaintiff is the prevailing party because he prevailed on his FEHA causes of action.  Defendant does not contest that Plaintiff is the prevailing party in its opposition, rather Defendant argues an award of attorneys’ fees under FEHA is discretionary, not mandatory, and Plaintiff’s requested fees should be reduced because Plaintiff’s counsel did not meet its burden of establishing the reasonability of fees requested.  For the purpose of this motion, Plaintiff is regarded as the prevailing party and is therefore entitled to attorneys’ fees pursuant to Government Code §12965(c)(6).

Reasonable Fees

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by the 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, emphasis added.)

The attorneys of Horton Law Firm, APC, declare the following hourly rates: (a) Laura L. Horton ($950 per hour); (b) Flor C. Dery ($525 per hour); and (c) Meriah Prendergast (paralegal, $125 per hour).  (Decl. of Horton ¶¶29-30; Decl. of Dery ¶13.)  These rates are appropriate given the attorneys’ relative experiences and qualifications.  (See id.)  Plaintiff has sufficiently demonstrated his counsel’s hourly rates are reasonable in their community of practice in their specialized area of law.

Defendant challenges Plaintiff’s counsel’s hourly rates as unreasonable but Defendant’s argument is unavailing.  (Opposition, pgs. 12-17.)  The Court finds Plaintiff’s counsel’s rates to be reasonable in their community of practice and do not warrant reductions.

Billed Hours

The party seeking fees and costs bears the burden to show “the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount.”  (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

“The court’s discretion in awarding attorney fees is, initially (‘absent circumstances rendering the award unjust’), to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client. The basis for the trial court’s calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.  [Citation.]  Then the court must adjust the resulting fee to fulfill the statutory purpose of bringing ‘the financial incentives for attorneys enforcing important constitutional rights . . . into line with incentives they have to undertake claims for which they are paid on a fee-for-service basis.’”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.)

Plaintiff’s counsel’s fee recovery is based on 1,592 hours spent litigating this case ($1,161,647.50).  (Decl. of Horsford ¶¶19-20, Exhs. B, C.)  Plaintiff’s counsel declares the following hours incurred: (a) Laura L. Horton (773.1 hours or $734,445.00); (b) Flor C. Dery (812.1 hours or $426,352.50); and (c) Mariah Prendergast (6.8 hours or $850.00).  (Decl. of Horsford ¶20, Exh. C.)  Defendant argues Plaintiffs’ counsel’s billed hours were not reasonably incurred because they were double-billed and inflated.  (Opposition, pgs. 9-12.)  Defendant’s objections to Plaintiff’s counsel’s billed hours are not well taken.

Defendant’s argument that the work performed by two attorneys at trial, depositions, or hearing was duplicative or unreasonable is unsupported by case law.  (See Margolin v. Regional Planning Commission (1982) 134 Cal. App. 3d 999, 1007.) To show unreasonable duplication, fee opponents must provide “specific evidence that plaintiffs’ hours were duplicative or inefficient”; generalized objections that the work is “excessive” or “duplicative” do not satisfy that burden.  (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 684.)

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the amount of $1,196,687.50.

Final Lodestar Determination

The Court denies Plaintiff’s request for lodestar multiplier of 1.75.  Plaintiff’s counsel’s rates already take into account the risks associated with contingent risk and the preclusion of other work, and the instant case did not pose exceptional difficulty compared to similar FEHA litigation brought before this Court.

Costs

Any effort to tax or strike costs must occur in the form of a motion to strike or to tax costs and must be served and filed fifteen (15) days after service of the cost memorandum.  (CRC, Rule 3.1700(b)(1).)  After the 15-day deadline to file a motion to tax costs has passed, the Court clerk must immediately enter the costs. (CRC, Rule 3.1700(b)(4).)

Plaintiff submitted his cost memorandum on March 27, 2024, and then filed an amended memorandum of costs on April 16, 2024.  Defendant failed to submit a motion to tax costs within the 15-day deadline.  Therefore, Defendant’s objections to Plaintiff’s costs must be denied.  (CRC, Rule 3.1700(b)(4).)

Plaintiff requests an additional $5,820.75 that was not included in the amended memorandum of costs for expert fees incurred by Richard M. Pearl in support of the instant motion.  (See Supp.-Decl. of Horsford ¶8, Exh. D.)  Such fees are also recoverable by Plaintiff as expert fees.  (Gov. Code §12965(c)(6).)

Accordingly, Plaintiff’s costs are granted in the total amount of $73,205.76, comprised of $67,385.01 in the amended memorandum of costs and $5,820.75 in expert fees incurred on the instant motion.

Conclusion

Accordingly, Plaintiff’s request for attorneys’ fees and costs is granted in the reduced total of $1,269,893.26, comprised of $1,196.687.50 in attorneys’ fees and $73,205.76 in costs.

Moving Party to give notice.

Dated:  July _____, 2024