Judge: Jon R. Takasugi, Case: BC609911, Date: 2023-03-22 Tentative Ruling

Case Number: BC609911    Hearing Date: March 22, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff is awarded $1,054,494 is reasonable attorney fees.

            On 10/27/2022, the jury rendered a judgment in favor of Plaintiff.

            Now, Plaintiff moves for an award of attorney fees totaling $3,745,086.25. This is based on a lodestar of $1,498,034.50, multiplied by a 2.5 enhancement.

Legal Standard

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed.  (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties[.]” (CCP § 1021.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)  In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.  (Ibid.)

In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorneys’ efforts, their learning, their age, and their experience in the particular type of work demanded the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 657 (Stokus).)

In determining the proper amount of fees to award, courts use the lodestar method.  The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.  “Fundamental to its determination … [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney … in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).)  A reasonable hourly rate must reflect the skill and experience of the attorney.  (Id. at 49.)  “Prevailing parties are compensated for hours reasonably spent on fee-related issues.  A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); see also Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.)  The value of legal services performed in a case is a matter in which the trial court has its own expertise.  (Id. at 1096.)  The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.  (Ibid.)  The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.  (Ibid.)

Discussion

Rates

            Plaintiff’s motion claims the following rates:

-          Angel J. Horacek: $795/hr

-          Barbara DuVan-Clarke: $750/hr

-          Ryan M. Kondrya: $250/hr

-          Louis D. Taylor: $110/hr

After a consideration of the relevant factors, including the duration of the litigation, the difficulty of the litigation, and the skill required, the Court finds the hourly rates claimed by Ms. Horacek, Ms. DuVan-Clarke, and Mr. Taylor to be unreasonable hourly rates for attorneys and paralegals of similar skill and experience. Rather, in light of the relevant factors, the Court adjusts the following rates:

-          Angel J. Horacek: $600/hr

-          Barbara DuVan-Clarke: $550/hr

-          Ryan M. Kondrya: $150/hr

-          Louis D. Taylor: $110/hr

Hours

            Ms. Horacek claims 1,073.9 hours worked. Ms. DuVan-Clarke claims 743.1 hours worked. Ms. Kondrya claims 342.6 hours worked. Mr. Taylor claims 11.9 hours worked.

While a review of billing records indicates mostly reasonable billings, there is still evidence of padding, unnecessary billings, and duplicative work. For example, both Ms. Horacek and Ms. DuVan-Clarke billed 4.5 hours for Dr. James Rosenberg’s deposition on 8/18/2022. (See Horacek Decl., Exh. A, at 72; DuVan-Clarke Decl., Exh. A, at 4.) Ms. Horacek billed 9.9 hours and 8.7 hours (total 18.6), and Ms. DuVan-Clarke billed 9.9 hours for the deposition of Catherine O’Brien on 10/4/2022 (the deposition lasted 8.5 hours). (See Horacek Decl., Exh. A, at 74; DuVan-Clark Decl., Exh. A, at 4.) Both Ms. Horacek and Ms. DuVan-Clarke billed 5.8 hours for the deposition of Deborah Polee on 7/25/2018 (which the Court excluded at trial). (See Horacek Decl., Exh. A, at 26; DuVan-Clark Decl., Exh. A, at 10.) Ms. Horacek billed 7.7 hours twice for the deposition of Stephanie Dillard on December 11, 2017. (See Horacek Decl., Exh. A, at 16.)

Additional examples include that Ms. Horacek billed 26.4 hours for October 10, 2022 (Horacek Decl., Exh. A, at 74), and “[o]n December 19 and 20, 2021, Ms. Horacek billed 8.9 and 7.9 hours for preparing the Oppositions to the Motion for JNOV and New Trial, respectively, but those Motions did not exist in December 2021.” (Opp., 3: 22-24.)

In sum, the Court agrees with Defendant’s calculation that the entries of Ms. Horacek are overstated by 66.8 hours, and the entries of Ms. DuVan-Clarke are overstated by 20.2 hours. Accordingly, the Court reduces the lodestar amount from $1,498,034.50 to $1,054,494.

-          Angel J. Horacek: $600/hr x 1,007.1 hrs =     604,200

-          Barbara DuVan-Clarke: $550/hr x 722.9 =    397,595

-          Ryan M. Kondrya: $150/hr x 342.6 hrs =         51,390

-          Louis D. Taylor: $110/hr x 11.9 hrs =                 1,309

       -------------

       $1,054,494

Lodestar Enhancement

Plaintiffs request a 2.5 lodestar enhancement based on the contingency nature of the case, the importance of the case to the public, and the anticipated delay in payment.

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, the hourly rates set forth above capture the skill and the contingent nature. Thus, any multiplier would be duplicative of the calculations set forth above. Furthermore, an analysis of the relevant factors do not justify an enhancement award.

It is so ordered.

Dated:  March    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.