Judge: Gail Killefer, Case: 20STCV08119, Date: 2023-04-21 Tentative Ruling
Case Number: 20STCV08119 Hearing Date: April 21, 2023 Dept: 37
HEARING DATE: April 20, 2023
CASE NUMBER: 20STCV08119
CASE NAME: Curtis Morrison v. Julie Ann Goldberg, et
al.
MOVING PARTIES: Defendants, Julie Ann Goldberg, and Goldberg &
Associates, PC (“Defendants”)
OPPOSING PARTY: Plaintiff, Curtis Morrison
TRIAL DATE: None
PROOF OF SERVICE: OK
MOTION: Defendants’
Motion for Attorney’s Fees
OPPOSITION: April
17, 2023–Untimely Filed. Opposition was due April 10, 2023. (CCP § 1005)
REPLY: April
14, 2023
TENTATIVE:
Defendants’ motion is denied. Plaintiff is to give notice.
Background
This action arises from the employment of Curtis Morrison
(“Plaintiff”) with Defendants Julie Ann Goldberg (“Goldberg”) and Goldberg
& Associates, PC (“Goldberg PC”). Plaintiff alleges that Defendants
employed him from July 2, 2018 to January 18, 2018. According to the Complaint,
Plaintiff was allegedly not paid the correct wages and not reimbursed for
business expenditures on various occasions. Additionally, Defendants allegedly
monitored Plaintiff through microphones, cameras, and other devices without his
consent, which caused him substantial emotional distress. Plaintiff also
alleges that Defendants required him to work overtime and weekend hours with
the promise that such work would be compensated through a year-end bonus but
that he was never compensated in this fashion.
Plaintiff’s Complaint, filed February 28, 2020 alleges seven
causes of action: (1) failure to reimburse; (2) failure to timely page wages;
(3) breach of contract; (4) fraudulent inducement/ false promises; (5)
intrusion into private affairs; (6) intentional infliction of emotional
distress; and (7) unfair business practices in violation of Business & Professions
Code § 17200.
On February 11, 2021,
Plaintiff filed a proof of service as to service on Goldberg PC (the “January
POS”). The January POS indicates that Goldberg PC was allegedly served on
January 8, 2021, by substituted service. Service was completed by leaving
documents with “BIL “DOE” – Person in Charge of Office at 14370 Ventura Blvd,
Sherman Oaks, California 91423 and thereafter by mailing copies of the summons
and complaint to this address. The January POS describes “DOE” as a middle
eastern male, approximately 25 years old, 6’1, with brown curly hair. On April
5, 2021, the court granted Defendants’ motions to quash, referencing the March
9 and April 29, 2020, proofs of service as to Defendant Goldberg, and the March
4, 2020, proof of service on Goldberg PC.
On October 21, 2022, the
court granted Goldberg PC’s motion to quash service of summons and ordered the
Complaint dismissed without prejudice.
Defendants now move for
attorney’s fees and costs in the amount of $22,825.00 and $1,358.77
respectively, pursuant to Labor Code § 218.5. Plaintiff opposes the motion.
Plaintiff’s opposition was initially untimely, as a
timely opposition was due April 10, 2023. (CCP §§ 1005(b), 1013(c).) The court
has the discretion to not consider this opposition in making its ruling. (Cal. Rules
of Court, Rule 3.1300(d).) However, in light of the circumstances and
equities between the parties, the court exercises its discretion in considering
the opposition.
Discussion
I.
Legal
Standard
Pursuant to CCP § 1033.5(a)(10)(B)-(C),
attorney’s fees are recoverable as costs when authorized by “statute” or “law.”
California follows the “American
rule,” pursuant to which litigants ordinarily pay their own attorney
fees. (Musaelian v. Adams (2009) 45 Cal.4th 512,
516.) Thus, a request for attorney fees must be based on either a
statutory or contractual provision authorizing their
recovery. (See Code Civ. Proc., § 1021.) Lab. Code §
218.5 provides in relevant part, “[i]n 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. However, if the prevailing party in the court action is not an
employee, attorney s fees and costs shall be awarded pursuant to this section
only if the court finds that the employee brought the court action in bad
faith.” Bad faith is to be determined by a subjective test. (USS-POSCO
Industries v. Case (2016) 244 Cal.App.4th 197, 222 [applying the bad faith
standard under the similarly-worded CLRA statute].)
II.
Whether Defendant is the Prevailing Party, and whether
Plaintiff brought this Complaint in bad faith
Defendants contend first
they are the prevailing party as dismissal was entered in their favor pursuant
to CCP § 1032. (Motion, 5.) Further, Defendants contend the Complaint was
brought in bad faith pursuant to Arave v. Merrill Lynch, Pierce, Fenner
& Smith, Inc. (2018) 19 Cal.App.5th 525. (Motion, 5-6.) Further,
Defendants contend Plaintiff’s claims were frivolous and in bad faith, because the
declaration of Goldberg “offers several pieces of evidence that contradict Ms.
Morrison’s [sic] allegations.” (Motion, 6.)
In opposition, Plaintiff
asserts:
“In this case, there has not been a determination on
the merits of the case. Defendant has continually avoided service despite
Plaintiff’s thousands of dollars spends on numerous attempts at serving
Defendants. Defendants were still knowledgeable about this case as evidenced by
their multiple motions to quash. As a result of Plaintiff’s inability to serve
Defendants, this court has dismissed the claim without prejudice. Plaintiff has
not had his opportunity to be heard in court and this Court has made no
determination about the merits of Plaintiff’s claims.
...
Julie Goldberg maintains a business in Los Angeles County.
She employed the plaintiff at this location. Julie Goldberg avoided services at
the business address. She maintains no proper agent of process for this
business. During the litigation Goldberg stated under penalty of perjury that
she was amenable to service in Michigan but when Plaintiff attempted service in
Michigan, service was refused.
Now Ms. Goldberg attempts to argue that she properly
paid all wages owed by presenting evidence after the case was dismissed and
making additional allegations against Mr. Morrison which are not proper as part
of a fee petition. Ms. Goldberg should not be reimbursed for intentional
evasion of service in this matter.
...
By Defendants filing their motion for attorneys’ fees,
they are submitting to the jurisdiction of this Court by asking this court for
a determination on the merits of whether Plaintiff brought this case in bad
faith. Further, the Defendants are effectively attempting to litigate this case
through their motion for attorney fees by including self-serving declarations
and alleged evidence that defend their actions and argue that the Plaintiff’s
case is frivolous. Defendants’ motion for attorney fees contests the merits of
Plaintiff’s case.” (Opposition, 4-6.)
The court agrees and finds
that Defendants have failed to meet their burden to demonstrate that
Plaintiff’s claims objectively lacked foundation from the inception of the
case, were maintained unreasonably, or were without merit.
Specifically, the court
accepts Plaintiff’s assertion that the merits of this case have not been heard,
and Defendants’ attempts to now litigate the allegations of the pleadings in an
attorney fees motion are unavailing. If Defendants sought to disprove
Plaintiff’s claims, it was incumbent upon them to accept service and present
themselves before this court through responsive pleadings. They failed to
accept jurisdiction under this court on several occasions, and now cannot avail
themselves of the jurisdiction of this court in being awarded attorney fees for
work done which was not reflected in the pleadings and captions of papers filed
in this matter. (Opp., 7.) The court’s
ruling on Defendants’ motions to quash service do not demonstrate that
Plaintiff’s Complaint was not defective on its face and thus, does not
constitute notice that Plaintiff’s claims were maintained unreasonably going
forward.
Having found that
Plaintiff’s claims against Defendants were not frivolous, unreasonable or
maintained in bad faith, Defendants’ motion is denied. Thus, the court does not
address the remainder of the parties arguments regarding the reasonableness of
Defendants’ requested fees.
Conclusion
Defendants’
motion is denied. Plaintiff is to give notice.