Judge: Gregory Keosian, Case: 19STCV43159, Date: 2023-04-27 Tentative Ruling

Case Number: 19STCV43159    Hearing Date: April 27, 2023    Dept: 61

Plaintiff Manuel Parravicini’s Motion for Attorney Fees is GRANTED in the amount of $8,185.63 in fees, $533.69 in costs, and the $3,185.00 in fees associated with the present motion.

Plaintiff to give notice.         

I.                MOTION FOR ATTORNEY FEES

This court on March 1, 2023, granted Plaintiff Manuel Parravicini’s (Plaintiff) motion to withdraw from arbitration under Code of Civil Procedure § 1281.97. Plaintiff here seeks fees under Code of Civil Procedure § 1281.99:

(a) The court shall impose a monetary sanction against a drafting party that materially breaches an arbitration agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, by ordering the drafting party to pay the reasonable expenses, including attorney's fees and costs, incurred by the employee or consumer as a result of the material breach.

(b) In addition to the monetary sanction described in subdivision (a), the court may order any of the following sanctions against a drafting party that materially breaches an arbitration agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(1) An evidence sanction by an order prohibiting the drafting party from conducting discovery in the civil action.

(2) A terminating sanction by one of the following orders:

(A) An order striking out the pleadings or parts of the pleadings of the drafting party.

(B) An order rendering a judgment by default against the drafting party.

(3) A contempt sanction by an order treating the drafting party as in contempt of court.

Plaintiff seeks $14,290.00 in fees, plus arbitration costs of $557.47, plus $3,185.00 in fees associated with the present motion. These fees reflect attorney activities from opposing the initial motion to compel arbitration to the present motion. (Motion at p. 4; Exh. B.) The total hours expended in connection with the arbitration and the present motion is 39.7, which yields an average hourly rate of $440.17. (Motion Exh. B; Afghani Decl. ¶ 10.)

Defendant APAC Sale Gorup , Inc. (Defendant) in opposition argues that Plaintiff should not be reimbursed for fees and costs incurred before arbitration, as these fees did not result from Defendant’s failure to pay arbitration fees. (Opposition at p. 2–5.) Defendant also argues that the hourly rates claimed by Plaintiff’s attorneys Ramin Younessi and Samantha Ortiz are excessive. (Opposition at pp. 5–7.)

Defendant is correct that Plaintiff’s pre-arbitration fees are not recoverable under the applicable fee provision. Code of Civil Procedure § 1281.99 allows for the recovery of fees and costs “incurred by the employee or consumer as a result of the material breach.” (Code Civ. Proc. § 1281.99, subd. (a).) Plaintiff’s pre-arbitration fees and costs, not incurred as a result of amounting to $4,705.00 in fees and $21.78 in costs, are properly deducted from any award.

Defendant is also correct that the rates associated with Younessi and Ortiz are excessive. “To determine the reasonable hourly rate, the court looks to the hourly rate prevailing in the community for similar work. 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.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393–1394 [internal quotation marks and citations omitted].) Younessi seeks an hourly rate of $1,200.00, based on prior court and arbitrator awards in which similar rates were upheld for them. (Younessi Decl. ¶¶ 8–21.) Ortiz seeks an hourly rate of $650 per hour based on similar authority. (Ortiz Decl. ¶¶ 15–18.) However, Defendant presents cases suggesting that the reasonable rates for attorneys of similar levels of experience is lower in the relevant community. (Libman Decl. ¶ 6.) Younessi’s and Ortiz’s rates are reasonably reduced to those requested by Defendant: $800 per hour for Younessi, and $500 per hour for Ortiz. (Opposition at pp. 6–7.)

Defendant finally argues that the fees sought in connection with the present motion ought not be awarded, since Ortiz does not provide any evidence concerning the fees incurred in relation to this motion. (Opposition at pp. 7–8.) This argument is founded on an error, however: the fees sought in connection with the motion are supported by the declaration of Chris Afgani. (Afgani Decl. ¶ 10.)

Thus the $14,290.00 fee lodestar is properly reduced by $4,705.00 for pre-arbitration work, and further reduced by $633.60 and $765.77 to account for the reduction in Younessi and Ortiz’s rates. The $555.47 cost request is reduced by $21.78. This leaves a lodestar of $8,185.63, and $533.69 in costs, plus the $3,185.00 in connection with the present motion.

Plaintiff’s motion for attorney fees is GRANTED in the above amounts.