Judge Holly J. Fujie, Case BC702531 2022-10-26 Tentative Ruling

This order concerns: (1) a motion to strike/tax costs filed by Plaintiff (the “Matthes Costs Motion”); (2) a motion to strike/tax costs filed by Defendants Christian Rodgers (“Mr. Rodgers”) and Lyndsy Rodgers (“Ms. Rodgers”) (collectively, “Defendants”) (the “Rodgers Costs Motion”); and (3) a motion for attorney’s fees filed by Plaintiff (the “Fees Motion”).

On April 18, 2018, Plaintiff filed a complaint (the “Complaint”) alleging 13 causes of action arising out of misconduct that occurred while Plaintiff lived with Defendants and worked as their au pair. On February 17, 2022, Plaintiff filed a notice of dismissal providing that on March 10, 2020, several causes of action were dismissed. Thereafter, the Complaint alleged: (1) invasion of privacy; (2) violation of Civil Code section 1708; (3) assault; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) violation of Government Code section 12940; and (6) breach of the implied covenant of quiet use and enjoyment. Each of the aforementioned remaining causes of action were alleged against Mr. Rodgers, while the remaining causes of action asserted against Ms. Rodgers were limited to the negligent infliction of emotional distress, intentional infliction of emotional distress and Government Code section 12940 violations claims.

A jury trial was held on April 11, 2022. Before the jury deliberated, Plaintiff dismissed the breach of the implied covenant of quiet use and enjoyment claim. The jury returned its verdict on April 14, 2022. The jury found in favor of Plaintiff and awarded damages for the: (1) constructive invasion of privacy claim against Mr. Rodgers in the amount of $100,000; (2) negligent infliction of emotional distress claim against Ms. Rodgers in the amount of $100,000; (3) intentional infliction of emotional distress claim against Mr. Rodgers in the amount of $250,000; and (4) hostile work environment claim against both Moving Defendants in the amount of $100,000 against Mr. Rodgers and $100,000 against Ms. Rodgers. In addition, the jury found that Moving Defendants acted with malice, oppression, or fraud and awarded Plaintiff punitive damages in the amount of $2,000,000 against Mr. Rodgers and $1,000,000 against Ms. Rodgers. The jury found in favor of Defendants with respect to the remainder of the claims alleged in the Complaint against them. The judgment (the “Judgment”) was entered on June 16, 2022.^{^[1]} The Judgment designates Plaintiff as the prevailing party entitled to costs. (See Judgment ¶ 12(h).)

On June 17, 2022, Plaintiff filed and served a Notice of Entry of Judgment. On June 30, Plaintiff filed a Memorandum of Costs (the “Matthes MOC”) and Defendants filed a Memorandum of Costs (the “Rodgers MOC”). On July 15, 2022, Defendants filed the Rodgers Costs Motion and on July 18, 2022, Plaintiff filed the Matthes Costs Motion. On September 12, 2022, Plaintiff filed the Fees Motion.

The right to recover any costs is determined entirely by statute. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) The statutory scheme detailing a prevailing party’s right to recover costs establishes three categories of trial preparation expenses: (1) costs allowable as a matter of right to the prevailing party (CCP § 1033.5, subd. (a)); (2) costs not allowable unless expressly authorized elsewhere by law (CCP § 1033.5, subd. (b)); and (3) costs not explicitly deemed allowable or not allowable category that may be awarded in the court’s discretion. (See CCP § 1033.5, subd. (c)(4)). Even where costs are deemed allowable, such costs are only recoverable to the extent that they are: (1) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation; and (2) reasonable in amount. (CCP § 1033.5, subd. (c)(2)-(3).)

In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable. (Id.) Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. (Id.)

Whether a costs item was reasonably necessary to the litigation presents a question of fact for the trial court. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) The items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Supporting documentation must be submitted only if the costs have been put at issue. (Id.) Once a party shows that an expense or cost was necessarily incurred, the burden is upon the moving party to establish the illegality of the challenged items; otherwise, the amount demanded in the verified cost bill is controlling. (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-83.) The objecting party has the burden to present evidence and prove that the claimed costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

In the context of determining an award of costs as a matter of right under CCP section 1032, the “prevailing party” includes the party with a net monetary recovery; a defendant in whose favor a dismissal is entered; a defendant where neither plaintiff nor defendant obtains any relief; and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032, subd. (a)(4).) If any party recovers other than monetary relief and in situations other than as specified, the prevailing party shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under CCP section 1034. (Id.)

A party that receives a net monetary recovery is entitled to its costs even if the party did not prevail on all causes of action asserted. (Dell’Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 559.) For costs awards under CCP section 1032, subdivision (a)(4), there is a single prevailing party. (Sharif v. Mehusa, Inc. (2015) 241 Cal.App.4th 185, 194.)

Plaintiff argues that the Rodgers MOC should be stricken in its entirety because Defendants are not the prevailing parties in this action. The Court agrees. Although Plaintiff voluntarily dismissed several claims initially alleged in the Complaint against Defendants and the jury found in favor of Defendants on some of the claims, Defendants were not dismissed from the action as a whole prior to the entry of the Judgment. Moreover, it is undisputed that Plaintiff received a net monetary recovery upon the conclusion of the trial. The Court therefore GRANTS the Matthes Costs Motion in its entirety.

Defendants argue that the Matthes MOC should be stricken in its entirety because Plaintiff did not concurrently submit the supplemental MC-011 worksheet. Defendants cite to no rule which requires the filing of the MC-011 worksheet and will not strike the Matthes MOC on this basis. The Court agrees, however, with Defendants’ argument that the costs in the Matthes MOC being broadly divided into categories without further breakdown prevents them from raising arguments or providing evidence concerning the necessity or reasonableness of the incurred costs. The Court will therefore review the costs claimed in the MOC and the evidence Plaintiff submitted with her opposition papers (the “Matthes Opposition”).

Filing, motion, and jury fees are allowable as costs. (CCP § 1033.5, subd. (a)(1).) Defendants generally object to this fee and note that the Matthes MOC does not specify the filing which the claimed costs correspond with, although they make no specific arguments regarding whether the costs were unnecessary or unreasonable to the litigation. In the Matthes Opposition, Plaintiff provides evidence of this cost. (See Declaration of Matthew F. Baker (“Baker Decl.”) ¶ 7, Exhibit B.) The Court finds that the claimed filing fees are proper and DENIES the Motion as to this item.

Filing, motion, and jury fees are allowable as costs. (CCP § 1033.5, subd. (a)(1).) The Court finds that the costs claimed in Item 2 are proper and reasonably incurred and therefore DENIES the Rodgers Motion as to this item. (See Baker Decl. ¶ 8, Exhibit C.)

Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed is an allowable cost. (CCP § 1033.5, subd. (a)(3)(A).)

Defendants have not provided evidence that the costs claimed in Exhibit D of the Baker Declaration are unreasonable. (See Baker Decl. ¶ 9, Exhibit B.) [2] The Court therefore DENIES the Rodgers Motion as to this item.

Court reporter costs are allowable as costs as established by statute. (CCP § 1033.5, subd. (a)(11).)

The Baker Declaration provides a breakdown of the court reporter fees Plaintiff incurred. (See Baker Decl., Exhibit D.) The Rodgers Reply does not provide evidence that these charges are unreasonable or unnecessary. The Court therefore DENIES the Rodgers Motion as to this item.

Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact. (CCP § 1033.5, subd. (a)(13).)

The Court finds that the Plaintiff’s costs for models, enlargements and photocopies of exhibits are proper except that the Plaintiff’s invoices indicate that she incurred $1,640.45 rather than $1,691 in such costs. (See Baker Decl. ¶ 11, Exhibit F.) The Court will therefore tax these costs so that they are consistent with the submitted invoices.

Fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents. (CCP § 1033.5, subd. (a)(14).)

The Baker Declaration does not indicate if the electronic filing or service of documents via an electronic service provider was required or ordered by the Court. Plaintiff’s supplemental memorandum of costs worksheet, however, indicates that such fees were required by the Court. (See Baker Decl., Exhibit I at ¶ 14.)

Defendants’ attorney’s declaration supporting the Motion also does not indicate if the electronic filing or service of documents via an electronic service provider was required or ordered by the Court. Defendants otherwise present no evidence that the $1,200.09 in costs for fees for electronic filing or service of documents through an electronic service provider was unnecessary or unreasonable. The Court therefore DENIES the Rodgers Motion as to this item.

The Matthes MOC does not break down the costs which comprise Item 16. Plaintiff has provided evidence, however, that the costs incurred represent the costs incurred to have FedEx deliver documents related to the trial to Defendants between January 12, 2022 and April, 28, 2022. (See Baker Decl. ¶ 13, Exhibit H.) Plaintiff incurred these costs because Defendants declined to accept electronic or email service. (Id.)

Postage, telephone, and photocopying charges, except for exhibits are expressly prohibited as costs, except when expressly authorized by law. (CCP § 1033.5, subd. (b)(3).) Plaintiff has cited no authority that authorizes these shipping fees. The Court therefore GRANTS the Rodgers Motion as to this item.

The Court therefore GRANTS the Rodgers Costs Motion in part and orders that the Matthes MOC be taxed in accordance with this order.

Plaintiff seeks attorney’s fees against Defendants in the amount of $481,530. This amount reflects 1,375.8 hours of spent working on this case beginning in 2019 at a blended hourly rate of $350 per hour. Defendants argue that this amount is excessive and should be dramatically reduced due to their inability to pay the fees. Defendants additionally argue that Plaintiff’s counsel has claimed fees for excessive and duplicative hours worked, the average hourly rate is improper because it exceeds the hourly rate of the paralegals who billed time on the case, and any award should be apportioned and limited to time spent litigating the FEHA claim.

In actions brought under the Fair Employment and Housing Act (“FEHA”), the court, in its discretion, may award reasonable attorney's fees and costs to the prevailing party. (Gov. Code §¿12965, subd. (b).) In the context of FEHA litigation, a trial court should ordinarily award attorney fees to a prevailing plaintiff unless special circumstances would render a fee award unjust. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 976 (“Chavez”).) California courts have recognized that the purpose of the fee provision was “to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy the Congress considered of the greatest importance.” (Cummings v.¿Benco¿Building¿Servs.¿(1992) 11 Cal.App.4th 1383, 1387.) Because these equitable considerations do not apply for a prevailing defendant, Courts have found that attorney’s fees for a prevailing defendant should be permitted not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious. (Id.)

As discussed with respect to the Costs Motions, supra, the jury found for Plaintiff on her FEHA hostile work environment claim and Plaintiff is therefore a prevailing party entitled to reasonable attorney’s fees.

The Court is unpersuaded that Defendants’ ability to pay constitutes a special circumstance that excuses them from being required to pay Plaintiff’s reasonable attorney’s fees. First, the cases they cite to support this proposition concern a plaintiff’s ability to pay a fee award in circumstances where the defendant is the prevailing party. Notably, the standard for evaluating the suitability of attorney’s fees for FEHA claims when the defendant prevails differs from the applicable standard for a prevailing plaintiff.

A court awards attorney’s fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The trial court has broad authority to determine the amount of a reasonable fee. (Id.) The loadstar figure may be adjusted, based on a consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Generally, the reasonable hourly rate used for the lodestar calculation is that prevailing in the community for similar work. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.) Nevertheless, where an attorney has been awarded attorney’s fees for comparable work at comparable hourly rates in other actions, the hourly rate will be deemed reasonable. (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473-74.) Where the opposing party does not produce evidence contradicting the reasonableness of the prevailing party’s counsel’s hourly rates, the court will deem an attorney’s hourly rate reasonable. (Id. at 473.)

In challenging attorney fees as excessive because too many hours of work are claimed, 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 Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.) ¿General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Id.)

Plaintiff seeks fees for work performed at an hourly rate of $350 per hour. (Baker Decl. ¶ 13.) This hourly rate represents an average of the hourly rates of the attorneys who billed time working on this matter[3] whose hourly rates range from $395 to $790 per hour and the hourly rate of a senior paralegal, Janette Dockstader (“Dockstader”) whose hourly rate was $275 in 2021 and $290 in 2022. (See Baker Decl. ¶¶ 2-7.)[4] Plaintiff provides background information on the hourly rates of all the timekeepers’ backgrounds and of the prevailing hourly rates in the community. (See Baker Decl. ¶¶ 3-7, 14-17, Exhibit B.)

The Court finds that Plaintiff has demonstrated that the $350 hourly rate is reasonable. Defendants do not provide evidence of the unreasonableness of the attorneys’ hourly rates. While the $350 average hourly rate exceeds the hourly rate of the paralegal who billed time, a review of Plaintiff’s billing records demonstrates that the vast majority of the time billed was performed by attorneys, all of whom having hourly rates greater than $350, even at this litigation’s inception. (See Baker Decl., Exhibit A.) The Court notes, however, that Plaintiff has not presented evidence of the reasonableness of Dockstader’s hourly rate. Accordingly, the Court will reduce Plaintiff’s recovery by the 291.9 hours billed bt Dockstader. (See Baker Decl., Exhibit A.)

When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, attorney fees are only recoverable on the statutory cause of action. (Akins v. Enterprise Rent–A–Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133-1134.) This generally requires the trial court to apportion the fees so that the losing party is only required to pay for such fees as were incurred in prosecuting or defending the statutory action. (See Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687 (trial court abused discretion in awarding attorney fees under Brown Act by failing to first apportion out those fees unrelated to Brown Act violation).) Attorney’s fees need not be apportioned, however, between distinct causes of action where plaintiff's various claims involve a common core of facts or are based on related legal theories. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251.) Nor is apportionment required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney's time into compensable and noncompensable units. (Id.) In addition, a fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (Chavez, supra, 47 Cal.4th at 990.)

Here, Plaintiff’s counsel’s billing records are not segregated by time spent on work in connection to each distinct cause of action alleged in the Complaint. Although the FEHA claim is the sole statutory basis for Plaintiff’s entitlement to attorney’s fees, it is undisputed that all of Plaintiff’s claims arise out of the same nucleus of facts. While the elements of Plaintiff’s non-FEHA claims differ from the FEHA claim, the existence of an employment relationship was central to the other claims, particularly since Plaintiff’s employment was enmeshed with her tenancy at Defendants’ residence. Furthermore, Plaintiff’s recovery of punitive damages was based on a consideration of the evidence presented at trial. The Court therefore finds that the claims are intertwined to an extent that prevents the apportionment of recoverable attorney’s fees to time spent solely litigating the FEHA claim.[5]

In addition, while Defendants argue that Plaintiff seeks compensation for duplicative and excessive work because multiple attorneys billed time, they have not cited to any particular billing entries or provided evidence that the billed entries represent excessive work.

The Court therefore GRANTS the Fees Motion in part and awards Plaintiff reasonable attorney’s fees in the amount of $379,365, which represents 1,083.9 hours at an hourly rate of $350 per hour.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] On August 11, 2022, the Court denied Defendants’ motion for judgment notwithstanding the verdict and motion for new trial. During the August 11, 2022 hearing, Plaintiff agreed to reduce the punitive damages award against Mr. Rodgers to $1.8 million and reduce the punitive damages award against Ms. Rodgers to $200,000.

[2] The reply brief (the “Rodgers Reply”) does not include a declaration. In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

[3] Four attorneys billed time in this matter: (1) Baker; (2) Sean D. Muntz; (3) Roshanne C. Katouzian; and (4) Meghan M. Glaspy. Plaintiff’s counsel litigated this action on a contingency basis. (Baker Decl. ¶ 2.)

[4] The attorneys’ hourly rates all increased during the pendency of this litigation. (See Baker Decl. ¶¶ 2-7.) Further, the Baker Declaration provides that Baker directly oversaw discrete tasks performed by “less expensive attorneys and staff.” (Baker Decl. ¶ 8.)

[5] This case is distinguishable from Chavez, which Defendants cite to support their argument that they should not be required to pay attorney’s fees. Chavez involved a plaintiff who, after asserting multiple claims, prevailed on a single FEHA claim for retaliation and was awarded economic damages in the amount of $1,500 and $10,000. The plaintiff thereafter sought attorney’s fees in the amount of $870,935.40. (Chavez, supra, 47 Cal.4th at 980-81.) The California Supreme Court upheld the trial court’s decision to deny the plaintiff’s motion for attorney’s fees based on the plaintiff’s overall success in the action, the amount of damages awarded on that claim, the amount of time an attorney might reasonably expect to spend in litigating such a claim, and the trial court’s conclusion that the action should have been brought as a limited civil case. (Id. at 991.) The Court noted that the sole claim on which the plaintiff prevailed was based on conduct that occurred after he initiated the litigation and that therefore, the claims in the action as originally filed were lacking in merit. (See id. at 990, n. 8.)