Judge: Jon R. Takasugi, Case: BC681378, Date: 2023-01-18 Tentative Ruling

Case Number: BC681378    Hearing Date: January 18, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiffs are awarded $2,067,862 in reasonable attorney fees.

On 10/27/2017, Plaintiffs Mitzi Alvarez, Alisha Ciorlieri, Erika Irigoyen, Linda Irigoyen, Johanna Rios, Vanessa Rodriquez, and Yedidia Simental (collectively, Plaintiffs) initiated this action. On 6/20/2018, Plaintiffs filed a second amended complaint (SAC) against Citrus Community College District, Vincent Patino, Eric Magellan in his individual and official capacity, and Robert Sammis in his individual and official capacity, alleging: (1) sexual harassment; (2) failure to take reasonable steps to prevent sexual harassment; (3) equal protection and due process; and (4) supervisorial liability; violation of civil rights.

            Now, Plaintiffs seek reasonable attorney fees totaling $2,153,324.50.

Discussion

            Plaintiffs argue they are entitled to recover reasonable attorney fees under FEHA and section 1988.

Rates

Plaintiffs submitted the following table of claimed rates:

            After a consideration of the relevant factors, including the duration of the litigation, the difficulty of the litigation, the skill required, and the contingency nature of the case, the Court finds the following rates to be reasonable:

-         Senior/Emeritus Partner: $800 per hour

-         Partners: $650 per hour

-         Senior Associates: $450 per hour

-         Junior Associates: $300 per hour

-         Certified Paralegals and Law Clerks: $185 per hour.

Hours

            Plaintiffs’ counsel claims over 3,200 hours of billable work. After review, the Court finds most of these hours reasonably incurred. However, the Court also finds evidence of some padding or excessive/duplicative billing which supports a reduction in fees.   

In a 131-page compendium of evidence, Plaintiff’s counsel comprehensively reviewed and responded to each of Defendants’ objections to billing entries. Altogether, Plaintiffs’ counsel conceded that at least $85,462.50 in improper billings should be stricken. (Bednarski Decl., Exh. C.)  

The Court accepts Plaintiffs’ defense of the remaining billed-for hours. This includes expert fees. While Defendants argue that Mr. Fischbach was not retained as an expert under after Plaintiffs had already received the 998 offer, Plaintiffs contend that this is incorrect: “Defendants timeline is incorrect. The 998 offer was made July 15, 2021 and not accepted until July 27, 2021, both dates weeks after the meeting between McLane and data expert Fischbach. The designation of Fischbach (and another expert) made August 2021 was necessary even though Citrus and Plaintiffs had an agreement in principle on July 27, 2021 via the 998 acceptance. At the time of the designation filed August 13, 2021, there was no settlement agreement memorialized (not until 2022), the causes of action against Patino were not settled, and the Citrus trial was still on the court’s calendar.” (Compendium, Table 1, p. 14.) In light of this timeline, the Court finds it was reasonable for Plaintiffs to obtain experts. The fact that an expert is not ultimately called upon to testify at trial does not, on its own, mean that the expert was not reasonably consulted.

            In sum, the Court finds some of the hours claimed to be “excessive, redundant, or otherwise unnecessary.” (Hensley v. Eckerhart, 461 U.S. 424, 434.)  The Court finds a final lodestar figure of $2,067,862 to be reasonable. (Gonzalez v. City of Maywood (9th Cir. 2013) 729 F.3d 1196, 1203.

Lodestar Enhancement

Plaintiffs request a 1.5 lodestar enhancement based on the contingency nature of the case and the quality of the work performed.

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.

            However, the Court also declines to award a negative multiplier “to discourage future litigants from excessive greed” as requested by Defendants.

It is so ordered.

Dated:  January    , 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.

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motion to tax costs is GRANTED as to the $3,964.61 in costs for copies, fedex/overnight, and postage), but DENIED as to the $4,043.23 in research costs.

On 10/27/2017, Plaintiffs Mitzi Alvarez, Alisha Ciorlieri, Erika Irigoyen, Linda Irigoyen, Johanna Rios, Vanessa Rodriquez, and Yedidia Simental (collectively, Plaintiffs) initiated this action. On 6/20/2018, Plaintiffs filed a second amended complaint (SAC) against Citrus Community College District, Vincent Patino, Eric Magellan in his individual and official capacity, and Robert Sammis in his individual and official capacity, alleging: (1) sexual harassment; (2) failure to take reasonable steps to prevent sexual harassment; (3) equal protection and due process; and (4) supervisorial liability; violation of civil rights.

            Now, Defendants seek to tax costs.

Discussion

            Defendants argue that the following costs should be taxed because they were not reasonably necessary to the conduct of litigation and are not reasonable in the amount:

-         Item 16(a) (Copies): $3,183.85

-         Item 16(a) (Research): $4,043.23

-         Item 16(a) (Fedex/Overnight): $650.06

-         Postage 16(a) (Postage): $130.70

In support, Defendants argue that: (1) the depositions took place over Zoom, and so all documents, including exhibits, were exchanged electronically; (2) Plaintiffs have not produced evidence to indicate why they needed to print more than 15,000 documents in light of the fact that exhibits were exchanged electronically; and (3) postage costs are expressly disallowed except for exhibits, and, again, exhibits were exchanged electronically.

In opposition, Plaintiffs argue that these costs are recoverable under both 42 USC section 1989, which allow for costs beyond CCP section 1033.5(b). See Harris v. Marhoefer (1994) 24 F.3d 16, 19: “[u]nder § 1988, Harris may recover as part of the award of attorney's fees those out-of-pocket expenses that “would normally be charged to a fee paying client. Thus reasonable expenses, though greater than taxable costs, may be proper. Harris’ response indicated the questioned items were necessary and reasonable in this case.”

While the Court is persuaded by Plaintiffs’ authority that section 1988 allows for costs beyond section 1033.5(b), that same authority still indicates that the expenses must be reasonable.

While Plaintiffs have provided case law showing that the categories of costs can be recoverable, Plaintiffs still have not offered a persuasive explanation to show that those costs were reasonable here in light of the fact that depositions were conducted electronically. Put another way, while the Court agrees that postage, photocopying, and shipping can be recoverable, Plaintiffs have not established that those costs were necessary and reasonable in this case. (See Harris, supra, 24 F.3d. 16, 19.)

However, the Court agrees that research costs can be recoverable here, and were reasonable and necessary to this litigation. (Trustees of Const. v. Redland Ins. Co. (9th Cir. 2006) 460 F.3d 1253, 1258–1259) (“we reject the department's contention that charges incurred by Local 290 for computerized legal research are not recoverable as attorney fees…[given] growing circuit consensus that reasonable charges for computerized research may be recovered as attorney's fees' under federal law” (internal punctuation omitted).)

            Based on the foregoing, Defendants’ motion to tax costs is granted as to the  $3,964.61 in costs for copies, fedex/overnight, and postage), but denied as to the $4,043.23 in research costs.

It is so ordered.

Dated:  January    , 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.