Judge: Malcolm Mackey, Case: BC719866, Date: 2023-05-09 Tentative Ruling

Case Number: BC719866    Hearing Date: May 9, 2023    Dept: 55

ESCOBAR v. GOWER CAR WASH                                                         BC719866

Hearing Date:  5/9/23,  Dept. 55

#6:  MOTION FOR ATTORNEYS’ FEES IN THE AMOUNT OF $140,947.50.

 

Notice:  Okay

Opposition

 

MP:  Plaintiffs.

RP:  Defendant GOWER CAR WASH.

 

Summary

 

On 8/31/18, plaintiffs JOSE MAXIMO MORA ESCOBAR and OTHONIEL JUAREZ MARTINEZ filed a Complaint, alleging the employer defendants, GOWER CAR WASH, PAUL MANDER, SERGIO VENEGAS, and JAIME VENEGAS, are liable as to wage-and-hour violations, including failures to pay minimum wages, pay overtime wages, provide meal and rest breaks or compensation in lieu thereof, produce Plaintiffs’ employee file and payroll records upon request, provide itemized employee wage statements, and pay wages upon termination.

The jury rendered the verdict for plaintiffs, on 2/17/22.

Judgment was filed 9/9/22.  Notice of judgment was filed 10/25/22.  The motion for attorneys’ fees was filed 12/23/22.

 

MP Positions

 

Moving party requests an order awarding attorneys’ fees in the amount of $140,947.50, on bases including the following:

 

·         Multiple statutes provide for awards of reasonable attorney’s fees applicable to this action.  LAB. C.  §§ 218.5, 226(h),  C.C.P. § 1021.5.

·         The jury awarded Plaintiff Mora $8,022 and Plaintiff Martinez $3,510 in unpaid wages and meal premiums.

·         This case was taken by CRISTAL LAW OFFICES on a contingency basis due to the low-income nature of the Plaintiffs who were minimum wage earners and thus unable to afford a lawyer.

·         Defendants attempted to compel the matter to arbitration.

·         Depositions were taken of Mr. Mander and facilities managing agents Mr. Sergio Venegas and Mr. Jaime Venegas.

·         Trial commenced 2/14/22.

·         A total of 133.25 attorney hours were spent on this case.

·         Attorney Cristal Cabrera at $450 per hour and she bills her staff Ms. Martinez at $150 per Hour;  trial attorney Alan Romero at $800 per hour; and associate attorney Robert Myong at $575 per hour. The lodestar, calculated by multiplying each person’s reasonable hours by the hourly rate, totals $70,473.75.

·         This four-year-old case was especially difficult, given: (a) uncooperative Defendants, (b) conflicting paperwork regarding Plaintiffs’ hour logs, sign in sheets and wage statements (c) proving the falsity of the wage records presented by Defendants; (d) Plaintiffs were both non-English speakers; and (e) the pandemic delaying trial eliminating any incentive for Defendants to fairly resolve this case.

 

 

RP Positions

 

Opposing parties advocate awarding no more than reasonable and justified attorneys’ fees, for reasons including the following:  

 

·         Plaintiffs barely prevailed on only some of their claims and received only a fraction of the damages they sought in this lawsuit. The majority of Plaintiffs’ claimed fees are unjustified, improper, unreasonable and without any evidentiary support.

·         Plaintiffs claim a significant amount of fees for secretarial work performed by Plaintiffs’ counsel’s legal secretary, which they are not entitled to recover.

·         Romero submitted no declaration to support his unverified claims for attorney’s fees incurred and, thus, there is not authentication of his claimed fees and Cristal Cabrera’s attempt is insufficient.

·         Plaintiffs’ Lodestar analysis completely ignores that the results obtained were negligible.

·         Plaintiffs’ counsel fails to segregate their attorney’s fees for the claims they prevailed on versus those they did not prevail on and/or those claims that were dismissed and claims against individuals dismissed at trial.

·         A negative multiplier is appropriate here.

·         Plaintiffs’ motion is untimely.

 

 

Tentative Ruling

 

The motion is granted, in a reduced sum, not as prayed.

The Court awards to plaintiffs reasonable attorneys' fees in the sum of $54,632.50 against defendants.

The Court finds that the local market billing rate of attorneys for a relatively simple wage-and-hour case, as this is, would be $410, not the requested rates of $800, $575 and $450.

Additionally, the Court finds that no multiplier is justified, including because of the simple, low-value nature of this case.

In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’" Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 (affirming rate of $450 per hour), overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.

The degree of success in obtaining litigation objectives is a factor that judges may, but are not required to, consider in determining the award of reasonable attorney fees.  Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1397;  Meister v. Regents of Univ. of Cal. (1998) 67 Cal. App. 4th 437, 454.  However, case law does not require attorney fee awards to be in proportion to awards in litigation.  Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1397.

“The award of a multiplier is in the end a discretionary matter largely left to the trial court.”  Hogar v. Community Development Com'n of City of Escondido (2007) 157 Cal.App.4th 1358, 1371.  “[T]he trial court is not required to include a fee enhancement for exceptional skill, novelty of the questions involved, or other factors. Rather, applying a multiplier is discretionary.”   Rey v. Madera Unif. Sch. Dist. (2012) 203 Cal.App.4th 1223, 1242.

" 'Attorneys fees need not be apportioned between distinct causes of action where plaintiff's various claims involve a common core of facts or are based on related legal theories.' " Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159.   “[A]ttorney fees need not be reduced for work on unsuccessful claims if the claims ‘are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units.’"  Mann v. Quality Old Time Service, Inc. (2006) 139 Cal. App. 4th 328, 342. 

Support services, including expenses related to secretaries and paralegals, are includable in an award for attorneys’ fees.  City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 7.  As to parties prevailing in an action on a contract with terms for recovery of attorney fees and costs, counsel's disbursement costs, such as secretarial, copying, telephone, expert fees and travel, are recoverable as a part of attorney fees, “if they represent expenses ordinarily billed to a client and are not included in the overhead component of counsel's hourly rate.”   Bussey v. Affleck (1st Dist. 1990) 225 Cal. App. 3d 1162, 1166-67,  abrogated by Hsu v. Semiconductor Sys., Inc. (2005) 126 Cal. App. 4th 1330, 1342.  But see, e.g., Benson v. Kwikset Corp. (4th Dist. 2007) 152 Cal. App. 4th 1254, 1283 (recognizing great weight of a split of authority);   Fairchild v. Park (2d Dist. 2001) 90 Cal. App. 4th 919, 930 (disagreeing with Bussey opinion, and following view that attorney fees and expenses are distinctly different by statute);  Robert L. Cloud & Assocs., Inc. v. Mikesell  (1st Dist. 1999) 69 Cal. App. 4th 1141, 1154  (“attorney fees do not include expenses….”).

Labor Code Section 218.5 authorizes the award of reasonable fees to a party who prevails in an “action brought for the nonpayment of wages.”  Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1248.

The burden of proof was not especially onerous in this case.  In a wage-and-hour case, plaintiffs only have the burden to show sufficient evidence of the amount and extent of work performed in support of just and reasonable inferences of an approximate amount, and then the burden then shifts to employers to either evidence the precise amount of work performed, or to negate the reasonableness of the inferences.  Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 135,  disapproved on other grounds by  Noel v. Thrifty Payless, Inc. (2019) 7 Cal. 5th 955, 986 n. 15;  CACI 2703.  “California courts have shifted the burden of proof to employers when inadequate records prevent employees from proving their claims for unpaid overtime hours.”  Amaral v. Cintas Corporation No. 2 (2008) 163 Cal.App.4th 1157, 1189.

Finally, the Court finds that opposing evidentiary objections are immaterial for deciding this motion, given the easily satisfied burden of proof involved.  “California case law permits fee awards in the absence of detailed time sheets…. An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.”  Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255,  disapproved on other grounds by   Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal. 5th 260, 270.  Cf. also  In re Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 512  (“We see no reason why Judge Abbott could not accept the declarations of counsel attesting to the hours worked, particularly as he was in the best position to verify those claims by reference to the various proceedings in the case.”).  Records amounting to vague block billing are not objectionable per se.   Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1325.

Finally, the motion was timely filed within 60 days from notice of entry of judgment.  A motion for fees incurred up to judgment rendition including any appeal fees before then, must be filed within the time for filing a notice of appeal.  CRC Rules 3.1702(b)(1) and 8.104(a)(1) (notice of appeal must be filed 60 days after notice of entry of judgment was mailed);  “Claims for statutory attorney fees and contractual attorney fees must be filed by motion, within the time for filing a notice of appeal.”   Anthony v. City of L. A. (2008) 166 Cal. App. 4th 1011, 1015 (citing CRC rule 3.1702(a), (b)(1).)  However, courts have discretion to grant relief under Code of Civil Procedure Section 473, as to untimely-filed motions for attorney fees.  Lee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187, 1200.