Judge: Mark E. Windham, Case: 21STLC08597, Date: 2023-10-10 Tentative Ruling

Case Number: 21STLC08597    Hearing Date: November 6, 2023    Dept: 26

McComb v. Rider, et al.

MOTION TO TAX COSTS

(Civ. Code, § 52; CRC Rule 3.1702)

TENTATIVE RULING:

Plaintiff Keith McComb’s Motion for Award of Attorney’s Fees is GRANTED IN THE AMOUNT OF $6,160.00.

ANALYSIS:

On December 6, 2021, Plaintiff Keith McComb (“Plaintiff”) filed this action under the Unruh Civil Rights Act (“the UCRA”) against Defendants Vicki Rider, as Trustee Of The Marlem F. Mason And Helen A. Mason Revocable Trust Dated June 26, 2001 FBO Vicki Rider (“Defendant Rider”) and Terry Holden As Trustee Of The Marlem F. Mason And Helen A. Mason Revocable Trust Dated June 26, 2001 FBO Terry Holden (“Defendant Holden”) (collectively, “Defendants”). The case came for trial on June 5, 2023, at which time the trial court entered judgment in Plaintiff’s favor in the amount of $4,000.00. (Minute Order, 06/05/23.)

Plaintiff filed a memorandum of costs on June 12, 2023 and a proposed judgment on June 20, 2023. On June 21, 2023, the Court granted Defendants’ Motion to Tax Costs. (Minute Order, 06/21/23.)

Plaintiff filed the instant Motion for Award of Attorney Fees on August 16, 2023. Defendants filed an opposition on October 9, 2023.

Discussion

Entitlement to Award of Attorney’s Fees

Plaintiff moves for attorney’s fees pursuant to Civil Code section 52, subdivision (a). Where a plaintiff proves a denial of civil rights or discrimination under Civil Code sections 51, 51.5 or 51.6, the defendant is liable for damages and “any attorney’s fees that may be determined by the court in addition thereto . . . .” (Civ. Code, § 52, subd. (a).) This action was expressly brought under Civil Code section 51 and the court found in Plaintiff’s favor on the Complaint. (Compl., ¶7; Minute Order, 06/05/23.) Therefore, Plaintiff is entitled to an award of attorney’s fees under Civil Code section 52, subdivision (a).

In opposition, Defendants argue against an award of attorney’s fees pursuant to Code of Civil Procedure section 1033, subdivision (b)(1), which states in relevant part:

(b) When a prevailing plaintiff in a limited civil case recovers less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court, the following shall apply:

(1) When the party could have brought the action in the small claims division but did not do so, the court may, in its discretion, allow or deny costs to the prevailing party, or may allow costs in part in any amount as it deems proper.

(Code Civ. Proc., § 1033, subd. (b)(1).) Like in their Motion to Tax Costs, Defendants argue here that Plaintiff and his counsel only filed this action in the limited jurisdiction court, instead of the small claims court, in order to obtain attorney’s fees, which is their true motive for bringing this case. Defendants contend this motive is apparent from Plaintiff’s request for an award of attorney’s fees well beyond the $4,000.00 judgment. The case on which Defendants rely, however, is distinguishable from this action. In Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, the plaintiff prevailed in an unlimited jurisdiction action under the Fair Employment and Housing Act (“FEHA”) but only obtained an award of $11,500.00. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 976.) The trial court relied on subdivision (a) of Code of Civil Procedure 1033, which vests it with discretion regarding the award of costs where the judgment could have been rendered in a limited civil case. (Ibid.) The California Supreme Court held that “section 1033(a), interpreted according to its plain meaning, gives a trial court discretion to deny attorney fees to a plaintiff who prevails on a FEHA claim but recovers an amount that could have been recovered in a limited civil case.” (Ibid.)

Chavez is distinguishable from the fact of this case in that an award of attorney’s fees under FEHA is not mandatory. While FEHA has been interpreted to mean a trial court should ordinarily award attorney’s fees to a prevailing party, the fees can be denied if special circumstances would make the fee award unjust. (Ibid.) There is no such discretion under Civil Code section 52, which mandates that a prevailing plaintiff be awarded attorney’s fees. It appears that no California state court has addressed the interaction between Code of Civil Procedure section 1033 and a mandatory attorney’s fees provision. However, one federal district court ruled, with respect to an action for unpaid wages under Labor Code section 203, it lacked the discretion to deny attorney’s fees in their entirety because attorney’s fees in unpaid wage actions are mandatory. (Drumm v. Morningstar, Inc. (N.D. Cal. 2010) 695 F.Supp.2d 1014, 1024.) The district specifically distinguished Chavez on these grounds.

Therefore, Defendants have not demonstrated a basis to deny Plaintiff’s request for attorney’s fees under Code of Civil Procedure section 1033, subdivision (b)(1).

Defendants next turn to subdivision (b)(2) of section 1033, which provides that “[w]hen the party could not have brought the action in the small claims court … those costs shall only be awarded to the plaintiff if ... the plaintiff informed the defendant in writing of the intended legal action against the defendant and that legal action could result in a judgment against the defendant that would include the costs and necessary disbursements allowed by this paragraph.” (Code Civ. Proc., § 1033, subdivision (b)(2).) This statute, however, does not apply to this action by its own terms. This is not an action that Plaintiff could not have brought in small claims court. Defendants themselves argue that Plaintiff should have done so. Therefore, Defendants have also not demonstrated a basis to deny Plaintiff’s request for attorney’s fees under Code of Civil Procedure section 1033, subdivision (b)(2).

Calculation of Attorney’s Fees Amount

Plaintiff seeks attorneys’ fees of $10,300.00 based on 20.6 hours of time billed at $500.00 per hour. (Motion, Mehrban Decl., ¶3.) Defendants oppose the request on the grounds that the hourly rate is inflated for boilerplate litigation of this kind and that $350.00 is much more reasonable. They also contend that many of the smaller tasks performed by Plaintiff’s attorney were unnecessary or should have taken far less time but that Plaintiff’s attorney separately billed each item to inflate the hours.

The Court’s objective is to award attorney fees at the fair market value based on the particular action.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “‘[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) The reasonable hourly rate is defined as “the prevailing rate in the community for comparable professional legal services.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156.)

The burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar. (Blum v. Stenson (1984) 465 U.S. 886, 895 fn. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891.) However, the moving party may satisfy its burden through its own affidavits, without additional evidence. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903, 131 Cal.Rptr.2d 266.) Moreover, in assessing a reasonable hourly rate, the trial court is allowed to consider the attorney's skill as reflected in the quality of the work, as well as the attorney’s reputation and status.

(MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) Plaintiff contends his attorney bills at $500.00, which is a reasonable hourly rate for an attorney practicing since 1993 and this rate is in line with the Laffey Matrix. (Motion, Mehrban Decl., ¶4.) The number of years of experience of these attorneys, however, is not the only consideration for a reasonable hourly rate.

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East, supra, 6 Cal.App.5th at p. 437, 212 Cal.Rptr.3d 304; see Mountjoy, supra, 245 Cal.App.4th at p. 272, 199 Cal.Rptr.3d 495 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors .... [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)

(Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.) These other factors recommend a lower hourly rate. This disability discrimination case was neither difficult nor complex, as evidenced by the lack of any pre-trial motion practice and limited trial duration. Nor are these types of civil rights cases “undesirable” given their prevalence in both state and federal court. In opposition, Defendant does not offer evidence relevant to the reasonable hourly rate. Defendant relies on numerous cases from the Northern District of California, which does not encompass Los Angeles. Defendant cites a single case from the Central District of California which is not published and made no finding regarding the reasonableness of the attorney’s hourly rate. (Citing Whitaker v. SMB Grp. (C.D. Cal., 2021) 2021 WL 5150045, *2-3.) Based on these considerations, Plaintiff’s attorney’s hourly rate is reduced to $400.00.

Regarding the number of hours billed, the Court finds that there was padding of time based on unnecessary breakdowns of tasks and given the boilerplate nature of this case, of which Plaintiff’s attorney files in the hundreds. The same template for Plaintiff’s Complaint containing a scant seven paragraphs of allegations should not take 0.4 hours to draft. Accordingly, that time is reduced to 0.2 hours. Similarly, the time to draft the witness list containing only five witnesses, three of whom are parties, and exhibit list containing three document, is reduced from 0.4 hours to 0.2 hours. Time spent drafting interrogatories that are duplicated from the other UCRA cases filed by Plaintiff’s attorney is reduced from 0.2 hours to 0.1 hours. 0.2 hours to draft the proposed judgment and 0.3 hours to draft the memorandum of costs are each reduced to 0.1 hours.

Tasks such as reading and responding to emails were broken down into separate micro-tasks to overbill such as on February 3, 2022 and May 12, 2023. The hours on those days are reduced to 0.2 hours each. Finally, 2.4 spent unsuccessfully opposing Defendant’s motion to tax costs and two hours to reply to the instant Motion, which has not been filed, were not reasonably necessary to this litigation. Based on the foregoing, the total hours billed are reduced by 5.2 hours to 15.4 hours for an award of $6,160.00.

Conclusion

Plaintiff Keith McComb’s Motion for Award of Attorney’s Fees is GRANTED IN THE AMOUNT OF $6,160.00.

Moving party to give notice.