Judge: Donald F. Gaffney, Case: Mendoza v. County of Orange, Date: 2023-07-12 Tentative Ruling

FINAL RULING:

Motion for Attorneys’ Fees and Expert Costs

Plaintiff Glenda Mendoza moves for an award of $1,951,455.00 in attorneys’ fees and a lodestar multiplier of 2.0 in the amount of $1,934,220.00, following a jury trial of this Fair Employment & Housing Act (“FEHA”) action.  Defendant Orange County opposes Plaintiff’s motion.  For the following reasons, Plaintiff’s motion is GRANTED in part and DENIED in part.

ANALYSIS: 

A.   Lodestar Calculation for Attorneys’ Fees

The lodestar method for calculating attorneys’ fees applies to any statutory attorneys’ fees award, unless the statute authorizing the award provides for another method of calculation. (Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th 1063, 1089; see also K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) In order to calculate an attorney fee award under the FEHA, courts generally use the well-established lodestar method. (Caldera v. Department of Corrections and Rehabilitation (2020) 48 Cal.App.5th 601, 607.) When determining a reasonable attorneys’ fees award using the lodestar method, the court begins by deciding the reasonable hours the prevailing party’s attorney spent on the case and multiplies that number by the reasonable hourly compensation of each attorney. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep’t of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The court then has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure, such as the novelty and difficulty of the issues presented, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (See Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) The court is not required to impose a multiplier; the decision is discretionary. (Galbiso, 167 Cal.App.4th at 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.)

1.    Reasonable Hourly Rate

The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1094.) This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represented the client on a straight contingent fee basis, or are in house counsel. (Id.) To determine that reasonable market value, the court must determine whether the requested rates are within the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal. App. 4th 740, 783.)

Plaintiff requests the following rates for its counsel:

Factors that may be considered in determining whether counsel’s rates are reasonable include: level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139.) 

The party requesting fees has the initial burden of producing evidence sufficient to support the reasonableness of the billing rates requested. (See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.) If the moving party meets its burden, the burden shifts to the opposing party to produce admissible evidence sufficient to show that the rates requested are not reasonable. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 155 [finding court erred in reducing rates where evidence of reasonableness of rate requested was undisputed]; Davis v. City of San Diego, 106 Cal.App.4th at 904.)

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [citations omitted].)

In Agopian v. Federal Express Corporation (C.D. Cal., June 25, 2021, No. CV 20-5282 DSF (EX)) 2021 WL 2634680, at *2, the Central District of California noted a survey of case law suggested that $500 is a reasonable rate for an employment attorney with 30 years of experience.

In Franco v. Central Transport LLC (C.D. Cal., Oct. 27, 2022, No. EDCV191464JGBSPX) 2022 WL 16921826, at *3, the Central District of California consulted the 2021 Real Rate Report: The Industry’s Leading Analysis of Law Firm Rates, Trends, and Practices and determined that an hourly rate of $600 is reasonable for employment attorneys with over 22 years of experience who do not work at a firm and $450 is reasonable for an associate in the employment and labor industry with 6 years of experience.

Based on the above, the court makes the following reductions to Plaintiff’s requested rates: (1) Bijan Darvish’s rate from $650 to $500 per hour; (2) Jason M. Erlich’s rate from $900 to $650 per hour; (3) John Eckert’s rate from $750 to $600 per hour; (4) Douglas Benedon’s rate from $850 to $650 per hour; and  (5) Brandon White’s rate from $225 to $175 per hour. The instant matter is not novel nor were the issues particularly difficult, and the senior attorneys did work typically done by junior associates. (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 438-439 [finding billing rate reduction of senior attorney was justified where the attorney did “the yeoman’s work” that would ordinarily be done by more junior associates with low billing rates].)

2.    Hours Reasonably Expended/ Reductions

In challenges to the reasonableness of the number of hours billed, “it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.” (Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id.) Additionally, the prevailing party’s verified time records should be “entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 396.)

Here, Defendant challenged the time entries by Plaintiffs’ counsel. Upon reviewing Plaintiffs’ counsels’ invoices, the court finds the following entries vague, reflective of overly long work, or not reasonably incurred.

3.    Multiplier

“The Supreme Court has ‘set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: “(1) the 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; [and] (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.” ’ ” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 248; see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.)

Plaintiff requests a lodestar multiplier of 2 due to: (1) the contingent nature of the fee award; (2) the preclusion of other work by the attorneys; (3) the public interest advanced; (4) the difficulty of the factual and legal questions involved; and (5) the skill displayed in presenting the case which led to an exceptional result.

The court finds that the risk of nonpayment, Plaintiffs’ counsel’s skill, and the difficulty of the questions involved, were considered in the court’s determination of the lodestar. (See Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.) Indeed, the “ ‘reasonable hourly rate [used to calculate the lodestar] is the product of a multiplicity of factors ... the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case.’ ” (Id.) Moreover,

“for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138–1139.)

The preclusion of other work by counsel does not weigh in favor of a multiplier. Ordinary preclusion from performing other work while engrossed in a pending action is a part of every case, and a party’s counsel are not entitled to a multiplier merely because they were busy during trial. Additionally, unlike other public interest matters, this action did not confer a significant benefit on the general public or a large class of persons. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 814 [“This case was litigated by a private individual for her own benefit. The doctrine “was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest. [Citation]”.)

Plaintiff argues the contingent nature of the case should not be included in the lodestar calculation. The court acknowledges that the court in Margolin v. Regional Planning Comm (1982) 134 Cal.App.3d 999 states the hourly rates sought by and awarded to counsel are the basic rates charged by the time keeper and that factors such as “the novelty and difficulty of the questions involved, the skill displayed and the contingent nature of the fee” are not part of the basic hourly rate. (Id. at 1005.)

More recently, however, courts have determined that “[t]he contingency adjustment may be made at the lodestar phase of the court’s calculation or by applying a multiplier to the noncontingency lodestar calculation (but not both).” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 , citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133–1134.) In Ketchum, the California Supreme Court states: “Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.... We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Ketchum, 24 Cal.4th at 1138.) Here, the court exercises its discretion to consider the contingent nature of the case as part of the lodestar calculation.

For the foregoing reasons, plaintiffs are awarded $1,238,672.00 in attorneys’ fees.   

4.    Expert Fees

In actions brought under FEHA, Government Code section 12965(b) states, “the court, in its discretion, may award to the prevailing party ... reasonable attorney's fees and costs, including expert witness fees.”

Defendant does not challenge Plaintiff’s request for $16,965.15 for her expert fees. Plaintiff’s motion for an award of expert fees is granted in the amount of $16,965.15.

Plaintiff to give notice.