Judge Jill Feeney, Case Number: 21STCV36796, Date: 2023-12-01 Tentative Ruling

This is an action for retaliation. Plaintiff alleges that she is employed by the Los Angeles County District Attorney’s Office as a Head Deputy District Attorney. In November 2020, George Gascon was elected to the office of the District Attorney. Gascon released directives that substantially changed the way crimes were to be prosecuted. The directives abolished prosecutors’ ability to file crimes against juveniles if the crime also qualified as a strike, prohibited prosecutors from charging juveniles for more than one crime even if they committed more than one crime against multiple victims, and prohibited charging juveniles with appropriate charges even if the evidence warranted it and successful prosecution depended upon it. Plaintiff believed that criminal charges made under these new policies were not truthful charges and that they violated California’s ethical and statutory duties of a prosecutor. Additionally, Plaintiff believed policies prohibiting minors from being charged as adults violated Marsy’s Law, which was enshrined into the California Constitution. After Plaintiff emailed her concerns to her Bureau Director, Plaintiff alleges she was denied a position as Branch Division Head Deputy at a branch near her home, was transferred to the dead end Parole Division, placed in a non-descript office, not given an Assistant Head Deputy, refused pay for CDAA and NDAA dues, and given minimal tasks. Plaintiff also alleges the retaliation against her has impacted her ability to promote or advance in the future.

Defendant objects to the Declaration of Diana Wang Wells, Beth D. Corriea, and Gregory W. Smith. Although Defendant argues that the declarations contain testimony that is argumentative speculative, and conclusory, the Court finds that each declaration contains information about which each declarant had personal knowledge that is relevant to the attorney’s fees issues raised in this motion. Defendant’s objections are overruled.

“In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the ‘lodestar’ amount…[t]he ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ (Citation.) To determine the reasonable hourly rate, the court looks to the ‘hourly rate prevailing in the community for similar work.’ (Citation.) 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. (Citation.)’” (Bernardi v. County of Monterey (2008) 167 C.A.4th 1379, 1393-1394.)

“Some federal courts require that an attorney maintain and submit ‘contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney’ in support of an application for attorney fees…[i]n California, an attorney need not submit contemporaneous time records in order to recover attorney fees…[t]estimony 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.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “[A]n award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp., supra, 175 Cal.App.4th at 1375.) “‘“[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.’” (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 C.A.4th 550, 556.)

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The “‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” (Ibid.)” (Ketchum v. Moses (2001) 24 C.4th 1122, 1132.)

“[T]he contingent and deferred nature of the fee award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. (Ketchum v. Moses, supra, 24 Cal.4th at pp.1132-1133,104 Cal.Rptr.2d 377.) “‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’” (Id. at p.1133, 104 Cal.Rptr.2d 377, quoting with approval from Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480.) (Ketchum v. Moses, supra, 24 Cal.4th at pp.1133-1134, 104 Cal.Rptr.2d 377, 17.)” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394-395.)

The parties first dispute whether this motion is timely. Defendant argues that Plaintiff’s motion is an untimely motion for reconsideration under Code Civ. Proc., section 1008(a). The section provides that when an application made to a court has been refused or granted in whole or in part, conditionally, or on term, any party affected by the order may file a motion for reconsideration based on new or different facts after 10 days of service of the written notice of entry of the order.

Here, Plaintiff’s motion appears to be based on requests for fees for work performed on post judgment motions that the Court ruled on after the first motion for attorney’s fees was filed. Although Defendant alleges that these requests were made in Plaintiff’s reply to the original motion, the requests were not considered or discussed in the Court’s ruling on the first motion. Thus, Plaintiff’s motion is not a motion for reconsideration because Plaintiff’s requests that are the subject of this motion were never granted or refused in the previous order. The motion is also not a renewed motion because it does not seek the same order as the first motion as required under Code Civ. Proc., section 1008(b). Additionally, as Plaintiff points out, there is no law that a plaintiff may not file a second motion for attorney’s fees.

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“a reasonable hourly rate is the product of a multiplicity of factors . . . [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case”].)¿

Here, Wells testifies that she has been working as an attorney since 2011 and has been working at her current firm since January 2014 specializing in plaintiff-side employment law and, in particular, cases brought under the Fair Employment and Housing Act. (Wells Decl., ¶¶2-7.) She has second-chaired eight jury trials and first-chaired one jury trial to verdict. (Id., ¶10.) Given Wells’ experience, her nine years of specialization in plaintiff-side employment, and the number of cases she handled, the Court finds that a rate of $625 per hour is reasonable.

Interoffice communication: Counsel can and must frequently consult one another while preparing a client’s case. Collaboration does not necessarily amount to duplication. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 562.) Here, although Coriea’s and Wells’ billing records contain billing for internal conferences, the conferences took place on different dates and do not overlap, meaning only one attorney billed for each conference. The time billed will not be taxed.

Block billing: The classic case of block billing is when counsel identifies a huge portion of time as spent on a single, generic task, leaving the court and the opponent with no way to tell what was actually done with the time. (see Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325.) Here, the entries in each attorney’s records do not appear to be block billing. Each attorney recorded individual line items describing a single task, not multiple tasks. No time will be taxed.

Duplicative entries: The only duplicate entry appears to be the attorneys’ initial review of Defendant’s post judgment motions. Although each attorney reviewed Defendant’s motions for JNOV and new trial, the time entries are each different in length and each attorney then drafted different sections of the oppositions to the motions. Thus, there are no duplicate entries.

Excessiveness: Defendant points out that that Corriea, Wells, and Smith spent 50.96 hours opposing and reviewing the reply for Defendant’s motion for new trial. Additionally, the group spent more than 16 hours opposing Defendant’s JNOV. Defendant also points out that Corriea spent 16 hours on the reply to the first motion for attorney’s fees and estimates she will spend 17.4 hours preparing this second motion for attorney’s fees.

Corriea testifies that Defendant’s post judgment motions consisted of over-sized briefs totaling 49 pages and supporting documents totaling over 900 pages. (Corriea Decl., ¶10.) The opposition to Plaintiff’s motion for attorney’s fees was over 22 pages with over 90 pages of supporting documents. (Id.) Consistent with the Court’s first ruling on a motion for attorney’s fees, this case involved complex and novel legal questions. Because of the complexity of the issues presented in Defendant’s post judgment motions and the lengthy filings involved, the Court finds that the time billed is not excessive. No time will be taxed.

Relevant factors to determine whether an enhancement is appropriate include (1) the novelty and difficulty of the¿questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded¿other employment by the attorneys, (4) the contingent nature of the fee award.¿¿(Ketchum v. Moses¿(2001) 24 Cal.4th¿1122, 1132.)

Here, consistent with the Court’s ruling on Plaintiff’s first motion for attorney’s fees, the novelty and complexity of the legal issues presented in this case and the accelerated timeline under which the parties briefed Defendant’s post judgment motions justify a multiplier here. The multiplier is granted.