Judge: Maurice A. Leiter, Case: 20STCV35354, Date: 2023-04-28 Tentative Ruling

Case Number: 20STCV35354    Hearing Date: April 28, 2023    Dept: 54

Hearing Date: April 28, 2023

Department 54, Judge Maurice A. Leiter

Motion for Attorney’s Fees and Expert Costs;

Motion to Tax Costs

T/R:    PLAINTIFF’S MOTION FOR ATTORNEY’S FEES IS GRANTED IN THE REDUCED AMOUNT OF $629,243.75.

PLAINTIFF’S MOTION FOR EXPERT COSTS IS GRANTED.

DEFENDANT’S MOTION TO TAX COSTS IS DENIED.

            PLAINTIFF to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers, oppositions, and replies.

BACKGROUND

On September 16, 2020, Plaintiff Vincent Albano filed a complaint against City of Los Angeles, asserting causes of action for disability discrimination, failure to accommodate, and failure to engage in the interactive process. Plaintiff was employed by Defendant as a police officer. Plaintiff alleges Defendant discriminated against him because of his disability.

Following trial, the jury found in favor of Defendant on the cause of action for failure to accommodate and in favor of Plaintiff on the cause of action for failure to engage in the interactive process. The jury awarded Plaintiff $700,000.00 in past non-economic damages and $300,000.00 in future non-economic damages.

ANALYSIS

I. Plaintiff’s Motion for Attorney’s Fees and Expert Costs

Under Gov. Code § 12965(b), “a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.)

A. Reasonableness of Fees

“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.”  (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal. App. 4th 359, 396.)  If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable.  (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal. App. 4th 550, 560–63.)  The Court has discretion to reduce fees that result from inefficient or duplicative use of time.  (Horsford, supra at 395.)   

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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….”  (Graciano v. Robinson Ford Sales, Inc.¿(2006) 144 Cal. App. 4th 140, 154.) 

Plaintiff moves for attorney’s fees in the lodestar amount of $726,106.25. Plaintiff’s counsel declares that 882.10 hours at $175.00 to $1,100.00 per hour were spent prosecuting this action.

            1. Hourly Rate

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Grp. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’ — meaning that it abused its discretion.” (Id.)

Counsel Matthew S. McNicholas spent 255.75 hours at $1,100.00 per hour prosecuting this action. Counsel Douglas D. Winter spent 390.00 hours at $950.00 per hour prosecuting this action. Plaintiff presents the declarations of McNicholas and Winter, who represent that courts have awarded them hourly rates of up to $850.00 per hour. Plaintiff does not provide any statistical information to support counsel’s hourly rates nor any declarations of other similarly situated attorneys. In the Court’s view, rates of $1,100 per hour and $950.00 per hour are excessive. For attorneys of Plaintiff’s counsel’s experience and skill, the Court finds $950.00 per hour for McNicholas and $800.00 per hour for Winter appropriate. The Court declines to lower the hourly rates of the remaining attorneys and paralegal. These rates are not excessive.

2. Number of Hours

Plaintiff asserts that the number of hours spent is reasonable given the length and complexity of the action. The Court agrees. This action lasted approximately three years and proceeded to a jury trial.

Defendant asserts that counsel should not be compensated for time spent on unsuccessful claims. Plaintiff’s claims arose out of the same set of facts and required the application of overlapping legal issues. The Court sees no need to apportion fees in this instance.

The Court will allow 255.75 hours at $950.00 per hour for the work of McNicholas and 390.00 hours at $800.00 per hour for the work of Winter. The Court will not reduce the hourly rates for attorneys Kim and Nizinski’s or paralegal McGuire. The Court awards a total lodestar amount of $629,243.75.

B. Multiplier

The Court is permitted, but not required, to apply a multiplier to an award for attorney’s fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.) 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. (Id. at 1132.)

            Plaintiff requests the Court award a 1.25 multiplier to the fee award. Plaintiff asserts that a multiplier should be awarded for the preparation, skill, and expertise of counsel. Though counsel successfully litigated this case, the Court does not find a multiplier appropriate. The lodestar fees are sufficient to compensate counsel.

C. Expert Fees

            Gov. Code § 12965(b) authorizes the Court to award expert witness fees to the prevailing party. Plaintiff requests the Court award $10,120.00 in expert fees for the services of Marianne Inouye. Inouye testified regarding Plaintiff’s future economic losses. As stated, the jury did not award Plaintiff economic damages. Plaintiff asserts this does not prevent the recovery of expert costs. Defendant asserts Plaintiff should not recover expert costs for an unsuccessful claim.

Neither party provides authority on point. As the statute allows recovery of expert costs for the prevailing party, the Court will allow recovery of Inouye’s fees.

II. Defendant’s Motion to Tax Costs

Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP § 1032(b).)  “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.”  (CCP § 1033.5(c)(2).)  “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.”  (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.)  “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.”  (Ibid.)

            Defendant moves to tax $36,805.04 in costs for trial technology support services. Defendant asserts these costs were not reasonably necessary. In opposition, Plaintiff argues that these costs were reasonably necessary because the technology services greatly aided the jurors, making the presentation of exhibits and demonstratives at trial efficient and easy to see and follow for jurors, the Court, and the parties. The Court agrees. Plaintiff may recover these costs.

            Defendant’s motion to tax costs is DENIED.