Judge: Elaine Lu, Case: BC674792, Date: 2022-09-27 Tentative Ruling

Case Number: BC674792    Hearing Date: September 27, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

            On October 7, 2019, the court entered judgment in favor of Plaintiff Encarnacion Hernandez (“Plaintiff”) on causes of action for (1) failure to pay wages due, (2) failure to pay minimum wages, (3) failure to pay overtime wages, (4) failure to provide rest breaks, (5) failure to provide itemized wage statements, (6) waiting time penalties, (7) Unlawful Business Practices, and (8) failure to permit inspection of personnel and payroll records against defendants Princess Windows, LLC, Rosalba Barragan, and Rumueldo Guerrero (collectively “Defendants”) in the amount of $58,861.00 with prejudgment interest of $5,355.59 and attorney’s fees per noticed motion.  (See Statement of Decision, 8/21/19; see also Judgment 10/7/19.)

            On December 2, 2019, Defendants filed a notice of appeal.  On July 7, 2020, the Court granted Plaintiff’s motion for attorney’s fees and costs in the amount of $75,105.00 in attorney’s fees and $4,940.26 in costs.  (Order. 7/7/20.)  On August 5, 2021, the Court of Appeal issued the remittitur affirming the judgment.  (Remittitur 8/5/21.)

            On August 17, 2021, Plaintiff filed the instant motion for attorney’s fees on appeal. On November 10, 2021, Plaintiff filed a notice of errata as to the instant motion for attorney’s fees on appeal.  On April 8, 2022, Defendants filed an opposition.  No reply was filed.

            On April 21, 2022, the Court continued the instant motion to September 27, 2022 as the moving paper was missing a key exhibit.  (Minute Order 4/21/22.)  The Court ordered Plaintiff to file and serve the missing exhibit and permitted supplemental opposition and reply for the new hearing date.  On April 25, 2022, Plaintiff filed and served a notice of errata including the missing exhibit.  No supplemental opposition or reply has been filed.   

Legal Standard

“The right to recover costs on appeal is governed by California Rules of Court, rule 8.278 (rule 8.278).”  (Musaelian v. Adams (2011) 197 Cal.App.4th 1251, 1259.) 

“Rule 8.278(a) provides in part: ‘(1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal. [¶] ... [¶] (5) In the interests of justice, the Court of Appeal may also award or deny costs as it deems proper.’ The right to recover costs depends on four conditions: ‘(1) There must be a valid judgment awarding costs to the party claiming them; (2) the item must be one allowed by rule or statute; (3) the amount claimed must have been actually incurred; (4) the amount claimed must be reasonable.’”  (Ibid.)  Additionally, “[u]nless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.”  (Cal. Rules of Court, 8.278(d)(2).)

In determining what attorney fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.)  This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  From there, the “[t]he 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.” (Ibid.)  Relevant factors include: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Right to Recover

“In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action.”  (Lab. Code, § 218.5(a).)  As to minimum wage and overtime claims, “any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.”  (Lab. Code, § 1194(a).)

Here, Plaintiff prevailed on appeal and is entitled to costs.  (See Remittitur 8/5/21.)  Plaintiff is also entitled to attorney’s fees as the prevailing party for his claims for failure to pay wages, minimum wages, and overtime wages. 

Reasonableness of Attorney’s Fees

Plaintiff seeks attorney’s fees incurred in the amount of $39,565.00 and an additional lodestar multiplier of 1.5.  Defendants oppose, contending that the claimed attorney’s fees are unfair and excessive as the appeal was very limited with only briefing and no oral argument.  (Karlin Decl. ¶ 6.)

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney’s fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)  Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)  Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.”  (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

Here, Plaintiff states that three attorneys and a number of various paralegals/legal assistants/law clerks worked on the appeal.  Attorney Samuel J. Moorhead, an attorney for Plaintiff’s Counsel, Employee Justice Legal Group, P.C., bills at $550.00 and claims to have spent 29.2 hours on the appeal.  (Supp. Moorhead Decl. ¶ 27, Exh. 1.)  Moorhead became a member of the California State Bar in 2016 and is admitted to practice in the United States District Courts of California for the Central, Northern, and Eastern Districts.  (Supp. Moorhead Decl. ¶ 27.)  Moorhead has represented clients in a variety of employment matters for more than three years.  (Supp. Moorhead Decl. ¶ 27.)  Moorhead states that he was the attorney handling the case and involved in the day-to-day litigation.  (Supp. Moorhead Decl. ¶ 21.)  However, Moorhead states that his usual hourly fee is $500 given his work history and experience.  (Supp. Moorhead Decl. ¶ 28.)  Accordingly, the Court finds that $500 represents Moorhead’s reasonable hourly rate based on his stated experience.

Attorney Kaveh S. Elihu is the principal and founding partner of Plaintiff’s counsel.  (Elihu Decl. ¶ 2.)  Elihu served as supervising attorney and partner on this case since its inception.  (Elihu Decl. ¶ 4.)  Elihu has been an attorney in California since 2009 and is also admitted to practice before the United States District Courts of California for the Central and Eastern Districts, and the Ninth Circuit Court of Appeals.  (Elihu Decl. ¶ 6.)  Moreover, other courts in prior actions have approved hourly rates of $650 and $700 for Elihu.  (Elihu Decl. ¶ 12.)  Elihu seeks an hourly rate of $750 and spent a total of 9.4 hours on the appeal.  (Elihu Decl. ¶ 14; Supp. Moorhead Decl., Exh. 1.)  However, Elihu states that his current hourly rate is $700.  (Elihu Decl. ¶ 13.)  Accordingly, the Court finds that $700 represents Elihu’s reasonable hourly rate based on his stated experience.

Attorney Daniel J. Friedman is an attorney at Plaintiff’s counsel firm.  (Friedman Decl. ¶ 1.)  Friedman has been an attorney since 2013 and focuses on employment law and intellectual property law.  (Friedman Decl. ¶ 11.)  Further, this Court previously approved an hourly rate of $500 for Friedman for the instant action.  (Friedman Decl. ¶ 4.)  Friedman claims to bill at $550 and that he spent 4.2 on the appeal for the instant action.  (Friedman Decl. ¶ 11; Moorhead Decl., Exh. 1.)  However, Plaintiff has failed to justify the increase in the hourly rate.  Accordingly, the Court finds that $500 represents Friedman’s reasonable hourly rate based on his stated experience.

As to the paralegals, Leslie Castillo spent 14.1 hours working on the appeal and billed at an hourly rate of $125.  (Castillo Decl. ¶ 3; Moorhead Decl., Exh. 1.)  In addition, three other paralegals – Herbert Ortiz, Jenifer Toc, and Luis Guardado – spent 0.6 hours, 1.1 hours, and 0.2 hours respectively on the appeal and billed at an hourly rate of $125.  (Elihu Decl. ¶ 15; Moorhead Decl., Exh. 1.)  Finally, Daniel Lopez, a senior paralegal, claims to have spent 0.8 hours on the appeal and bills at $225.  (Elihu Delc. ¶ 15; Moorhead Decl., Exh. 1.)As to the fees by paralegals, the Court notes that case law has indicated what has been considered a reasonable hourly rate for paralegals in the greater Los Angeles area.  For example, in Cruz ex rel. Cruz v. Alhambra School Dist. (C.D. Cal. 2009) 601 F.Supp.2d 1183, a dstrict court within the Central District concluded over 13 years ago that $125 per hour was in line with prevailing market rates for law clerks and paralegals.  (Id. at p.1195.)  Thus, these rates for paralegals appear to be reasonable for the greater Los Angeles Area. 

In addition to the reduction in hourly rates as noted above, the court notes that there was significant time spent on inter office communications that do not appear to have been reasonably incurred.  As noted in the opposition, and not addressed by Plaintiffs, the appeal was limited.  There was no oral argument and only slight briefing by the parties as only one brief was filed by Plaintiffs.  (Karlin Decl. ¶ 6.)  Having three attorneys and five paralegals working on the appeal, especially a simple appeal with limited briefing with regard to a straightforward action does appear to indicate some overstaffing.  “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.) 

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees incurred is $25,457.50.

Lodestar Enhancement

Plaintiff requests a lodestar enhancement multiplier of 1.5 given the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved.  Defendants oppose stating that the enhancement is not warranted because the appeal was not particularly complex.

In whether to apply a multiplier the California Supreme Court has given clear guidance for the trial courts to follow.

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. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III. 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. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; 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, supra, 24 Cal.4th at pp.1138–1139.)

Here, many of the factors raised have already been addressed in the calculations of the hours worked and hourly rate above.  Therefore, the court finds that an enhancement multiplier is not appropriate for this case.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Encarnacion Hernandez’s motion for attorney’s fees on appeal is GRANTED in the total amount of $25,457.50.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: September 27, 2022                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court