Judge: John C. Gastelum, Case: 18-01026373, Date: 2022-08-30 Tentative Ruling
Motion for Attorney Fees
Tentative Ruling: Plaintiffs, Fatemeh Hosseini’s and Masoud Ziaie’s Motion for Attorney Fees and Costs is GRANTED as follows.
Attorney Fees: Plaintiffs seek an order granting attorney fees in the amount of $165,000. The Court GRANTS fees in the amount of $165,000 against Defendants, R&R Accounting and Tax Services, Inc., Green 60 Payroll Services, Inc., and Sohrab Rowshan, jointly and severally.
Plaintiffs contend they are entitled to the recovery of attorney fees pursuant to contract, by way of the Settlement Agreement entered between the parties, and pursuant to code, i.e., California Labor Code sections 226(e)(1), 218.5, and 1194, which allows the prevailing employee to recover attorney fees. Plaintiffs seek $165,000 in attorney fees based upon the cap agreed upon by the parties, even though the actual fees incurred are in excess of $375,000.
Defendants contend the Settlement Agreement provides that for the purposes of the instant motion only, Plaintiffs shall be deemed the prevailing party, and this is a reference to the statutes allowing awards of attorney fees to prevailing parties in wage, hour, and fraud claims, the recovery and amount of which remain subject to the Court’s discretion. Defendants also contend certain claimed fees should not be awarded as they are not supported by contract, wage, hour, and fraud laws, or other laws including all fees claimed in relation to Defendants’ Counter-Complaint and Plaintiffs’ Demurrers and Answer thereto in the total billing amount of $38,665, and all fees claimed in relation to Defendants’ Motion to Disqualify Opposing Counsel and Plaintiffs’ related Motion for Sanctions in the amount of $14,377, for a total reduction of $53,042. Defendants additionally contend the hours expended must be reduced for hours not reasonably expended including paralegal billings ($13,355), duplicated billings ($44,540), padded and overbillings ($108,905) for reductions totaling $166,800.
The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc. § 1032.) The prevailing party is entitled to costs as a matter of right in any action or proceeding. (Code Civ. Proc. § 1032(b).) Attorney fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).) “[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.)
The Court finds the Settlement Agreement expressly states that Plaintiffs shall be entitled to the recovery of attorney fees and costs, and the provisions of the Settlement Agreement indicating Plaintiffs are deemed the prevailing parties for the purposes of the attorney fees motion and recovery of costs supports entitlement to fees and costs under Labor Code section 218.5. (Ex. 1 to Declaration of Arash Shirdel (“Shirdel Decl.”), Settlement Agreement, Section C, Paragraph 3.)
In addition, Defendants do not dispute the assertion that Plaintiffs are deemed the prevailing parties for the purposes of this motion and are entitled to attorney fees under California Labor Code sections 226(e)(1), 218.5, and 1194.
As to Defendants’ contention that certain fees claimed should not be awarded as they are not supported by contract, wage, hour, and fraud laws, or other laws including all fees claimed in relation to Defendants’ Counter-Complaint and claims for conversion, breach of loyalty and fraud and Plaintiffs’ Demurrers and Answer thereto in the total billing amount of $38,665, and all fees claimed in relation to Defendants’ Motion to Disqualify Opposing Counsel and Plaintiffs’ related Motion for Sanctions in the amount of $14,377, for a total reduction of $53,042, this assertion is conclusory and is not supported by any evidence.
Moreover, even if the Court deducted $53,072 from $375,815, the amount of fees left is still more than the $165,000 Plaintiffs request. Thus, this amount appears to already be deducted from the total attorney fees incurred.
As to Defendants’ contention that Plaintiffs’ counsel has multiplied his 683.3 hours by the rate of $550 per hour to achieve more than $375,000, which must be reduced for hours not reasonably expended including paralegal billings ($13,355), duplicated billings ($44,540), and padded and overbillings ($108,905) for reductions totaling $166,800, Defendants provide no evidence to support that the billing to which they object is unreasonable, duplicative, or padded.
To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. V. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.)
More significantly, Defendants request deductions in the total amount of $166,800 from $375,815, the full amount Plaintiffs asserts was expended. This ignores that while Plaintiffs set forth the entirety of attorney fees incurred in the amount of $375,815, Plaintiffs do not seek this amount, and as acknowledged by Plaintiffs, the Settlement Agreement provides that attorney fees are capped at $165,000 such that Plaintiffs seek $165,000. Even if the Court deducted $166,800 from $375,815, the reduced amount ($209,015) is still more than the $165,000 that Plaintiffs seek. Defendants fail to object to the actual amount requested by Plaintiffs. Consequently, Defendants fail to present any evidence or argument to oppose the $165,000 sought by Plaintiffs, or to support that the $165,000 should be reduced.
Costs: Plaintiffs seek costs in the amount of $9,908.41, jointly and severally against all Defendants. The Court GRANTS costs in the amount of $9,908.41 against Defendants, R&R Accounting and Tax Services, Inc., Green 60 Payroll Services, Inc., and Sohrab Rowshan, jointly and severally.
“A party’s right to recover costs is governed entirely by statute. [Citation.]” (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “To obtain costs, a party must comply with the applicable rules of court. [Citation.]” (Ibid.)
Code of Civil Procedure section 1034 states, in part: “Prejudgment costs allowable under this chapter shall be claimed and contested in accordance with rules adopted by the Judicial Council.” (Code Civ. Proc., § 1034(a).) Code of Civil Procedure section 1032 provides, in part, that ‘[n]othing in this section shall prohibit the parties from stipulating to alternative procedures for awarding costs in the litigation pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032(c).)
“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CRC, rule 3.1700(a)(1).) Thus, the entry of a dismissal or judgment is a predicate to a costs award. (Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) “A party that request dismissal of an action must serve on all parties and file notice of entry of the dismissal.” (CRC, rule 3.1390.)
Here, the parties stipulated to an alternative procedure as permitted by Code of Civil Procedure section 1032(c), and the Declaration of Arash Shirdel substantially meets the requirement that costs claimed be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case. (Ex. 1 to Shirdel Decl., Settlement Agreement, Section C, Paragraph 3; Shirdel Decl., ¶ 30.) Defendants show no prejudice by an award of costs under this procedure. Moreover, the Court notes Plaintiffs filed a Memorandum of Costs on 8-22-22. (ROA 539.)
Defendants contend that costs must be reduced and/or denied entirely to the extent the costs are sought are unreasonable, duplicative, and unrelated to this action, including “copy/scan” costs of $3,280, investigative check of $100, and postage of $35.60 which should be deducted for a total reduction in costs requested in the amount of $3,415.60, leaving $6,592.81.
“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Statements in points and authorities and declaration of counsel are insufficient to rebut the prima facie showing. (Id. at p. 1266.) For items that are properly objected to, the burden of proof is on the party claiming them as costs. (Ibid.)
“An item not specifically allowable as costs under Code of Civil Procedure section 1033.5, subdivision (a), and not specifically prohibited under subdivision (b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. [Citation.]” (Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 645-646.)
Here, Plaintiffs’ counsel’s verified item of costs as set forth in paragraph 30 and Exhibit 10 to the Declaration of Arash Shirdel filed with the moving papers is prima facie evidence of their propriety, and the burden is on Defendants to show they were not reasonable or necessary. Defendants’ general arguments in opposition are insufficient to rebut the prima facie showing, such that Defendants have not met their burden in opposing costs for “copy/scan”, investigative check, and postage. Such costs also appear to be reasonably necessary to the conduct of the litigation.
Plaintiffs’ Request for Judicial Notice: Plaintiffs request that the Court judicially notice three documents consisting of Radwan v. Andaluz Motion for Attorney Fees of $257,895; Radwa v. Andaluz Order, and Shirdel v. CL Education, Inc. Order.
The Court GRANTS the request pursuant to Evidence Code section 452(d) as court records. The Court takes judicial notice of the existence of the documents and the results reached, but not the truth of hearsay statements included therein. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Plaintiffs to give notice.