Judge Holly J. Fujie, Case Number: BC702531, Date: 2024-11-26 Tentative Ruling

RESPONDING PARTY: Defendants CHRISTIAN RODGERS (“Mr. Rodgers”) and LYNDSY RODGERS (“Ms. Rodgers”) (jointly, “Defendants”)

This action arises from misconduct that occurred while Plaintiff lived with Defendants and worked as their au pair. The complaint (“Complaint”) alleged claims for: (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.

A jury trial was held starting 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 Defendants in the amount of $100,000 against Mr. Rodgers and $100,000 against Ms. Rodgers. In addition, the jury found that 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 (“Judgment”) was entered on June 16, 2022. The Judgment designates Plaintiff as the prevailing party entitled to costs. (Judgment, ¶ 12(h).)

Defendants filed a motion for new trial and a motion for judgment notwithstanding the verdict on July 1, 2022. (Motion for New Trial, 7/1/2022; Motion for Judgment Notwithstanding the Verdict, 7/01/2022) The Court found for Plaintiff, but reduced punitive damages to $1,800,000 as against Mr. Rodgers, and to $200,000 as against Ms. Rodgers. (Min. Order, 8/11/2022.)

Defendants filed Notices of Appeal from the Judgment on the jury trial and the Judgment on August 15, 2022, Court of Appeal Case No. B322759. (Notice of Appeal, 8/15/2022.) Defendants filed a second Notice of Appeal on December 23, 2022, specifically related to the award of attorneys’ fees, Court of Appeal Case No. B326083. (Notice of Cross-Appeal/Cross-Appeal, 12/23/2022.)

The Court of Appeal affirmed in B322759, and remittitur was issued on July 22, 2024. (Remittitur, 7/22/2024.) Defendants later dismissed their appeal in case no. B326083.

Plaintiff now moves this Court for an award of attorneys’ fees on appeal by filing the instant Motion for Award of Attorneys’ Fees on Appeal Against Defendants Christian Rodgers and Lyndsy Rodgers in the Amount of $59,605.00 (the “Motion”). Defendants filed an opposition to the Motion on November 12, 2024 and Plaintiff filed a reply on November 19, 2024

CCP §§ 1032 and 1033.5 provide that a prevailing party may recover its costs as a matter of right, and that those costs may include attorney’s fees when authorized by statute or contract. Government Code § 12965(b), provides, in part, that: “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” Therefore, attorney’s fees and costs may be recovered by the prevailing party in any action brought under the FEHA. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918.)

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

The attorney claiming fees bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) 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.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Id.)

Plaintiff seeks attorney’s fees against Defendants in the amount of $59,605. This amount

reflects 170.3 hours spent related to the appeal filed on this case at an average hourly rate of $350 per hour.

Defendants argue that the Motion should be denied due to their inability to pay the fees. Defendants additionally argue that Plaintiff’s counsel has claimed fees for excessive and duplicative hours worked, and further argue that any award should be apportioned and limited to time spent litigating the FEHA claim.

Here, Plaintiff is entitled to recover attorney’s fees as the prevailing party in this case pursuant to Government Code § 12965(b) and the Judgment issued by this Court. Accordingly, Plaintiff’s motion for attorney’s fees is proper.¿ 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. 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, which is not the situation in the case at bar. 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.

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [“The experienced trial judge is the best judge of the value of professional services rendered in [her] court.”].)

Plaintiff seeks fees for work performed at an hourly rate of $350 per hour. (Declaration of Sean D. Muntz [“Muntz Decl.”], ¶ 9.) This hourly rate represents an average of the hourly rates of the attorneys and a senior paralegal who billed time working time on this matter. (Id.) The Court finds that Plaintiff has demonstrated that the $350 hourly rate is reasonable.

Defendants assert that fees requested should be apportioned and apply only to the FEHA claim. 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.) As this Court previously held in its October 26, 2022 Order, all of Plaintiff’s claims arise out of the same nucleus of facts, and the claims are intertwined to an extent that prevents the apportionment of recoverable attorney’s fees to time spent solely litigating the FEHA claim. Thus, no apportionment of fees is required.

Plaintiff requests a total amount of attorneys’ fees of $59,605 for 170.3 hours spent. (Muntz Decl., ¶¶ 8-9; Exh. 1.) The Court is not persuaded by Defendants’ assertion that the billed entries are excessive or unreasonable. The Court notes, however, that while Plaintiff provides background information on Sean Muntz, Meghan Glaspy and Janette Dockstader, no basis is provided as to the other professionals who purportedly worked on the matter – Marie Mondia, David Greco and Matthew Baker. Accordingly, the Court strikes the entries pertaining to Mondia, Greco and Baker amounting to 2.1 hours. Thus, the requested time spent is reduced to 168.2 hours.

Based on all the foregoing, Plaintiff’s Motion is GRANTED in part. The Court awards in favor of Plaintiff $58,870 in attorney’s fees, representing 168.2 hours at a rate of $350/hour.

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.

Hon. Holly J. Fujie

Judge of the Superior Court