Judge Kerry Bensinger, Case Number: 23STCP03014, Date: 2024-05-07 Tentative Ruling

Ms. Kyra Ackerman (“Ackerman”) was employed by Dwell Management, LLC (“Dwell Management”) from 2016 to 2018. Ms. Simone Shah (“Shah”) served as Dwell Management’s chief executive officer. Shah later terminated Ackerman’s employment. On April 25, 2018, Ackerman filed a claim with the Labor Commissioner to recover unpaid wages and penalties. On November 18, 2021, the Labor Commissioner awarded Ackerman overtime wages of $22,383.38, interest of $8,235.86, and waiting penalties of $5,040.00, for a total of $35,659.24. Dwell Management and Shah (hereafter, “Employers”) appealed the decision. Roughly a year later, however, the Employers dismissed the appeal with prejudice.

On August 15, 2023, the Labor Commissioner’s decision became final. On August 17, 2023, the Labor Commissioner filed a request in this court for the clerk to enter judgment against Shah on the Labor Commissioner’s decision.[1] Judgment was entered in favor of Ackerman and against Shah on August 18, 2023. The Labor Commissioner served a Notice of Entry of Judgment on the parties on August 25, 2023.

On February 13, 2024, Ackerman filed this Motion for Attorneys’ Fees pursuant to Labor Code section 98.2. Ackerman seeks an order awarding her attorneys’ fees in the amount of $52,776.25.

“(c) If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.”

Typically, fee-shifting provisions are designed as rewards for success, to incentivize the filing of meritorious cases that might not otherwise make economic sense. Labor Code section 98.2, subdivision (c) is the opposite sort of provision. It is designed as a punishment for failure and to dissuade parties from filing an appeal to see if a different officer will rule differently. In determining whether a fee award is proper, the question for the court is not who succeeded; the question is who didn’t.

The provision is also asymmetrical – it gives no specific definition of failure for an employer, but it does give a definition of failure for an employee. An employee only fails if the court awards him nothing after a full hearing on the appeal. (Arias v. Kardoulias (2012) 207 Cal.App.4th 1429, 1435-39.) An employer, however, remains subject to the ordinary legal definitions that apply in other contexts; it fails if the appeal is dismissed at any point. (Arneson v. Royal Pacific Funding Corp. (2015) 239 Cal.App.4th 1275, 1277-80.)

Here, Shah (and Dwell Management) dismissed the appeal. Shah was therefore unsuccessful and becomes liable for the fees and costs incurred by Ackerman. The court’s task, then, is to determine if Ackerman’s requested fees are reasonable.

As indicated above, Ackerman is entitled to some award of attorney fees. She requests $52,776.25, which is based upon hourly billing rates of $795, $750, and $250, total hours spent in this matter in the sum of 84.84 hours, and a 1.25 multiplier.

In opposition, Shah challenges the timeliness of the motion and the reasonableness of the fee requested.

Contrary to Shah’s contention, Ackerman’s motion is timely. “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court-including attorney’s fees on an appeal before the rendition of judgment in the trial court-must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, rule 3.1702(b)(1).) California Rules of Court (CRC) rule 8.104(a)(1) further provides that “a notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.”

Here, judgment was entered on August 18, 2023. However, there is no proof of service of a “Notice of Entry” of judgment by a superior court clerk which would trigger the 60-day deadline under CRC rule 8.104(a)(1)(A) or 8.104(a)(1)(B). Further Ackerman filed this motion on February 13, 2024 which is 179 days after entry of judgment. The motion is timely.

Attorneys Angel J. Horacek and Iryll Robbins-Umel and paralegal Ryan M. Kondyra worked on this matter. They billed at hourly rates of $795, $750, and $250, respectively, and represented Ackerman on a contingency basis. Shah argues the foregoing rates are excessive.

Appellate authority requires that the court take the inherent risk of contingency matters into account. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394-395.) The court may do so in one (and only one) of two ways: by fixing a somewhat larger hourly rate than it otherwise would, or else by awarding a multiplier. (Id. at pp. 394-395.) Multipliers are favored in cases that involve novel and difficult issues, call forth extraordinary skill from counsel, and otherwise prevent counsel from attending to other business. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) This case involves none of those factors. The court will account for the contingent nature of this litigation by fixing a larger hourly rate than it otherwise would.

Based upon general prevailing rates in the Los Angeles area for this type of litigation, and in consideration of the contingent nature of this litigation, the court finds the reasonable rate for Plaintiff’s counsel’s billing is as follows: for Lodestar purposes, the court will award a “blended” hourly rate of $725.00 per hour. (See, e.g., Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.5th 240 [trial court has discretion to award a “blended hourly rate” for attorney’s fees motion].) The court further finds the reasonable rate of Mr. Kondyra’s billing is $200. Pursuant to Horsford, the court does not apply a multiplier.

Ackerman seeks to recover to 38.8 hours in attorney time and 46.04 hours in paralegal time for the total time of 84.84 hours.

Shah argues that Ackerman should not be awarded for billing after the entry of judgment, which amounts to 42.77 hours. Ackerman attributes much of this time to Shah’s failure to pay the judgment. In response, Shah explains she was required to post an undertaking and takes the position that Ackerman should have asked the court to release the undertaking to satisfy the judgment. This is backwards. Ackerman obtained a judgment against Shah. It was therefore Shah’s responsibility to pay the judgment.

Notwithstanding the foregoing, the court agrees that, generally, the hours expended are somewhat excessive. After review of the bills presented as Exhibit B to the Declaration of Angel J. Horacek, Exhibit B to the Declaration of Iryll Robbins-Umel, and Exhibit A to the Declaration of Ryan Kondyra, the court finds the reasonable time expended is as follows: 35 hours for time expended by counsel and 35 hours for time expended by paralegal.

Based on the foregoing, the Motion for Attorneys’ Fees is GRANTED. Plaintiff and Judgment-Creditor Kyra Ackerman is awarded the total sum of $32,375.00, consisting of $25,375.00 in attorney fees and $7,000.00 in paralegal costs.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] The Labor Commissioner filed a request as to Defendant Dwell Management in Case No. 23STCP0313.

[2] Shah served but did not file her opposition with the court due to technical difficulties. For this reason, the court continued the motion to allow Shah to file her opposition. Shah filed her opposition on April 17, 2024. Ackerman filed her amended reply on April 30, 2024.