Judge: Donald F. Gaffney, Case: Mendoza v. County of Orange, Date: 2023-05-24 Tentative Ruling



Motion for Attorneys’ Fees and Expert Costs


For the reasons set forth below, Plaintiff Glenda Mendoza’s Motion for Attorneys’ Fees and Expert Witness Costs is CONTINUED to July 5, 2023, at 9:00 a.m. in Department N16.


“In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the ‘lodestar’ amount. [Citations.] The ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ [Citation.] To determine the reasonable hourly rate, the court looks to the ‘hourly rate prevailing in the community for similar work.’ [Citation.] Using the lodestar as the basis for the attorney fee award ‘anchors the trial court’s analysis to an objective determination of the value of an attorney's services, ensuring that the amount awarded is not arbitrary. [Citation.]’ [Citation.]” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)


Once the trial court has fixed the lodestar, “ ‘it may increase or decrease that amount by applying a positive or negative “multiplier” to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.’ ” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 489.) “ ‘The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.’ [Citation.]” ’ ” (In re Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.)


Here, Plaintiff seeks attorney fees in the total amount of $3,885,675 ($1,951,455 lodestar enhanced with a  2x multiplier). Plaintiff seeks attorney fees for the work done by her counsel, Attorney Bijan Darvish, Attorney Jason Erlich, Attorney John Eckert, and Attorney Douglas G. Benedon. Plaintiff has supported her request for these fees via the declaration of her counsel.


With respect to the number of hours, a review of the moving papers shows that detailed time entries were provided only by Attorney Darvish. Attorney Benedon subsequently provided billing records with Plaintiff’s reply. Although Plaintiff contends her counsel need not provide detailed bills, more information is necessary to determine whether Plaintiff’s fee request is reasonable. Significantly, Plaintiff has requested a lodestar amount of $1,951,455 based on 2,559.1 hours of work, but has provided detailed records for only 1,239.3 hours. The declarations of Attorney Erlich and Attorney Eckert are insufficient to determine whether their requested hours were reasonably expended.


Defendant suggests that the Court could do an across-the-board percentage reduction to account for the lack of billing details, but there is no readily apparent reasonable basis upon which to do this, and thus doing so would likely constitute reversible error. (See, e.g., Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 282.)


Plaintiff may file a Supplemental Declaration that attaches the billing records for Attorney Jason Erlich and Attorney John Eckert no later than nine (9) court days before the continued hearing date. Should Defendant desire to file a response to the Supplemental Declaration, if any, or the new evidence Plaintiff submitted with her Reply, Defendant must file and serve it no later than five (5) court days before the continued hearing date. No further briefing is permitted.


Plaintiff to give notice.




Motion to Tax Costs


Defendant County of Orange moves to tax costs from Plaintiff Glenda Mendoza’s Memorandum of Costs for: (1) Item 1 for Filing and Motion Fees; (2) Item 4 for Deposition Costs; (3) Item 5 for Service of Process; (4) Item 12 for Models, Enlargements and Photocopies of Exhibits; and (5) Item 16 for Other. For the following reasons, Defendant’s motion is GRANTED in part.


A.   Recovery of Costs Under FEHA


The general rule for civil cases is: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032(b).) The current version of the relevant part of Government Code section 12965 concerning costs is found in subdivision (c), subsection (6) [formerly Government Code section 12965(b)] and states: “In civil actions brought under this section [Government Code section 12965], the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, 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(c)(6).)


There is no dispute that Plaintiff is the prevailing party.


B.   Merits


Code of Civil Procedure section 1033.5 specifies “items that qualify as recoverable ‘costs’ and identifies those that do not.” (Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1102.) Section 1033.5(a) lists allowable costs. Section 1033.5(b) lists costs that are not allowable. “Expenses which do not fit into either of these two categories ... may be recovered but only at the discretion of the court.” (Science Applications, 39 Cal.App.4th at 1103; Code Civ. Proc., § 1033.5(c)(4).)


“Allowable costs must be ‘reasonably necessary to the conduct of the litigation’ and ‘reasonable in amount.’ ” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693; Code Civ. Proc., § 1033.5(c)(2)–(3).) Costs that are “merely convenient or beneficial to [the] preparation” of the conduct of the litigation are not recoverable. (Code Civ. Proc., § 1033.5(c)(2).) “ ‘If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.’ ” (Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 222.)


Plaintiff’s Memorandum of Costs is taxed in the total amount of $1,034.23, consisting of the following:



All other costs were reasonably necessary to the conduct of the litigation and are reasonable in amount. (See Code Civ. Proc., § 1033.5(c).)


Plaintiff’s remaining costs in the total amount of $23,983.82 are therefore GRANTED.


Plaintiff to give notice.