Judge: Gail Killefer, Case: 20STCV08119, Date: 2023-05-11 Tentative Ruling

Case Number: 20STCV08119    Hearing Date: May 11, 2023    Dept: 37

HEARING DATE:                 May 11, 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. (C.C.P., § 1005)

REPLY:                                  April 14, 2023; Supplemental filed May 4, 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, Defendants allegedly failed to pay Plaintiff the correct wages and failed to reimburse him 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 the following 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, (7) unfair business practices in violation of Business and 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.

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.

On April 21, 2023, the court continued the initial hearing on this motion, and Defendant was given the opportunity to file a Supplemental Reply brief in response to Plaintiff’s untimely opposition. The motion now comes for hearing.

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 CCP § 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.

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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.

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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.)

In the Supplemental Reply, Defendants first assert that this court has the jurisdiction and the discretion to entertain this attorney fees motion. (S.Reply, 3-5, 7-8.) Defendants contend:

“Ms. Goldberg never evaded service. Plaintiff and his attorney just did not know what they were doing. Plaintiff (who is an attorney) hired an attorney based out of Arizona to try to serve Michigan-based Defendants, yet the most recent motion to quash revealed that Plaintiff served Ms. Goldberg’s tenant in Los Angeles, and filed a proof of service alleging that Ms. Goldberg was served. Even if Ms. Goldberg was evading service (which she was not) there is no duty that a defendant must concede service when it was improper.” (S.Reply, 4-5.)

Importantly, Defendants then contend Plaintiff’s claims were brought in bad faith as evinced by the “clearly” “false allegation[s]” contained in Plaintiff’s Complaint. (S.Reply, 6-7.) However, what this bad faith analysis asks this court to do is to engage with the pleadings, here the Complaint only, to determine whether the pleadings themselves are insufficient enough to show a lack of foundation in bringing these claims, or sufficient bad faith in bringing these claims while knowing they had no merit. The court cannot engage in such predictive analysis, absent a determination on the nature of those pleadings themselves. While Defendants ask this court to determinatively conclude Plaintiff’s allegations run contrary to the claims pled in the Complaint, doing so would mean a revival of an attack on a pleading when this matter has already been dismissed 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.” (Opposition, 4.) How can this court establish that Plaintiff’s claims conclusively lacked merit from the beginning, when the court has not looked to the merits of the pleading at all?

The court agrees with Plaintiff 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, if Plaintiff was able to successfully effectuate 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 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