Judge: Mel Red Recana, Case: 21STCP03088, Date: 2024-05-06 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 21STCP03088 Hearing Date: May 6, 2024 Dept: 45
|
JIMMY
WANG, Appellant, vs. BO
RUAN, Respondent. |
Case No.: 21STCP03088
DEPARTMENT
45 [TENTATIVE] RULING Action
Filed: 09/16/21 Trial
Date: N/A |
Hearing date: May 6, 2024
Moving Party: Respondent Bo Ruan (“Respondent”)
Responding Party:
Unopposed
Motion for Attorney’s Fees and Costs
The Court has
considered the moving papers. No opposition papers were filed.
The hearing on
the motion is CONTINUED.
Background
This
action arises from an appeal of an order, decision, or award of the Labor
Commissioner in State Case Number WCCM729446 (the “Underlying Action”). On
September 16, 2021, in this Court, Appellant Jimmy Wang (“Appellant”) filed a
Notice of Appeal indicating that he was appealing the decision of the Labor
Commissioner in the Underlying Action and attached the order, decision, or
award of the Labor Commissioner as Exhibit A thereto. (See Notice of Appeal at
Exhibit A.) The order, decision, or award was served on Appellant on September
9, 2021. (See Notice of Appeal.)
In
the Underlying Action, the matter came on for hearing before the Labor
Commissioner of the State of California on April 28, 2021. (Notice of Appeal at
Exhibit A.) Respondent Bo Ruan (“Respondent”) initiated the Underlying Action
against Appellant, and on August 30, 2021, the Labor Commissioner issued an
order that Respondent shall recover from Appellant a total of $49,109.40.
(Notice of Appeal at Exhibit A.)
On
May 27, 2022, the Court held an OSC re: Dismissal for Plaintiff’s Failure to
Appear and there was no appearance by or for Respondent. (05/27/22 Minute
Order.) The Court discharged the OSC and, after conferring with counsel
regarding the status of the case, the Court set this action for non-jury trial
on September 12, 2022. (05/27/22 Minute Order.)
Also,
on May 27, 2022, Appellant filed and served a Notice of Posting Bond indicating
that he posted a bond in the amount of $49,109.40 with the Clerk of this Court
pursuant to Lab. Code § 98.2(b) on September 17, 2021.
On
August 23, 2022, pursuant to stipulation between the parties, the court entered
an order continuing trial from September 12, 2022 to September 5, 2023.
(08/23/22 Order.)
On
August 1, 2023, pursuant to stipulation between the parties, the Court
continued trial from September 5, 2023 to June 17, 2024. (08/01/23 Order.)
On
November 28, 2023, pursuant to a request for dismissal filed by Appellant, the
instant action was dismissed without prejudice as to all parties and all causes
of action. (11/21/23 Request for Dismissal.)
On
December 15, 2023, after Respondent filed an ex parte application to
compel distribution of bond proceeds, the Court entered an order granting
Respondent’s ex parte application and ordered that the bond of
$49,109.40 shall be released and made payable to Respondent’s counsel pursuant
to Lab. Code § 98.2(b). (12/15/23 Order.)
On
January 11, 2024, Respondent filed and served the instant unopposed Motion for
Attorney’s Fees and Costs. Respondent moves for an order determining Appellant
to be unsuccessful in this action, and to determine and award Respondent
reasonable attorney’s fees and costs incurred in this appeal. Respondent’s
motion is made pursuant to Cal. Lab. Code § 98.2(c). Respondent requests an
award of attorney’s fees in the amount “of $56,540 and costs of $3,888.20, for
a total of $60,428.20.” (Memorandum of Points and Authorities at p. 7:20-22.)
As of May 1,
2024, the motion is unopposed. Any opposition to the motion was required to
have been filed and served at least nine court days prior to the hearing. (CCP
§ 1005(b).)
Legal
Standard
“When
an employer does not pay wages as required by law, an employee may either file
a civil action in court or a wage claim with the Commissioner.” (Cardinal
Care Management, LLC v. Afable (2020) 47 Cal.App.5th 1011, 1018.) “If the
employee choses the administrative route, a deputy commissioner then holds a
hearing commonly known as a Berman hearing.” (Ibid., internal quotations
omitted.) “The Berman procedure is designed to provide a speedy, informal, and
affordable method of resolving wage claims.” (Ibid., internal quotations
omitted.) “Within 10 days after service of notice of the Commissioner’s order,
decision, or award, either party may appeal to the superior court, which
considers the matter de novo.” (Ibid.) “As a condition of filing an
appeal, an employer must first post an undertaking in the amount of the award,
in the form of either an appeal bond or a cash deposit.” (Ibid.)
“Section
98.2, subdivision (c) provides: If the party seeking review by filing an appeal
to the superior court is unsuccessful in 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.” (Id.
at p. 1024.) “[T]his is not a standardized prevailing party attorney-fee
provision, but rather a one-way fee-shifting scheme that penalizes an
unsuccessful party who appeals the commissioner’s decision.” (Ibid.,
citation omitted, internal quotations omitted.) An employee is successful and
entitled to attorneys’ fees and costs under Lab. Code § 98.2 when an employer
withdraws its appeal. (Arenson v. Royal Pacific Funding Corp. (2015) 239
Cal.App.4th 1275, 1280; see also Cardinal Care Management, LLC v. Afable,
supra, 47 Cal.App.5th 1011, 1026.)
Attorneys’
fees are “computed in accordance with the familiar lodestar method.” (Cruz
v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237.) Under the lodestar
method, a trial court “tabulates the attorney fee touchstone, or lodestar, by
multiplying the number of hours reasonably expended by the reasonable hourly
rate prevailing in the community for similar work.” (Ibid.) “[A] party
must present some evidence to support its award request.” (Ibid.) “The
declaration of an attorney as to the number of hours worked on a particular
case may be sufficient evidence to support an award of attorney fees, even in
the absence of detailed time records.” (Ibid.) “[S]ufficient evidence to
support an attorney fee award may include [d]eclarations of counsel setting
forth the reasonable hourly rate, the number of hours worked and the tasks
performed.” (Ibid.) “There is no requirement that an attorney provide
time records or billing statements.” (Id. at p. 238.)
Discussion
Declaration of Matthew A. Haulk in Support of the
Motion
Counsel for Respondent, Matthew A.
Haulk (“Haulk”) provides a declaration in support of the motion. Mr. Haulk
declares the following: this matter arises from a wage claim filed by
Respondent against his former corporate employers and against Appellant. (Haulk
Decl., ¶ 2.) The matter came to hearing before the Labor Commissioner on April
28, 2021. (Id.) On August 30, 2021, the Labor Commissioner
awarded Respondent $242,830.57 against Respondent’s corporate employers and, of
that amount, the Labor Commissioner determined that Appellant was individually
liable for $49,109.40. (Id., ¶ 2; Exh. 1.) On September 16, 2021, Appellant
filed a Notice of Appeal of the Labor Commissioner’s August 30, 2021 award
against him and initiated the present action before the Court. (Id., ¶ 3; Exh. 2.)
On December 5, 2022, Respondent
served Appellant with a CCP § 998 Offer to Compromise in the amount of
$49,109.40, with each side to bear his own attorney’s fees and costs; however,
Appellant did not respond to the offer, and it was rejected. (Haulk Decl., ¶ 4;
Exh. 3.) In January 2023, the parties participated in voluntary mediation with
mediator Jan Schau, Esq. and the mediation was scheduled for a half-day but
carried over significantly beyond the allotted time. (Id., ¶ 5.) Respondent’s counsel participated in the
mediation remotely from China and the matter did not resolve at, or as a result
of, mediation. (Id.)
On November 21, 2023, Appellant
filed a request for dismissal of the entire action, and, on November 28, 2023,
the dismissal was entered as requested by the Court. (Id., ¶ 6; Exh. 4.) Counsel attests that Respondent
incurred costs in the sum of $3,888.20 in this matter for filing fees and the
mediation fee. (Id., ¶ 7(a)-(c).) Counsel states that he has spent at
least 56.3 hours litigating this case as follows: 3.5 hours for client
communications; 0.5 hours for opposing counsel communications; 5.5 hours for
fact investigation/review of case materials; 9.5 hours for legal research; 0.3
hours for discovery; 2.5 hours for internal meetings/strategy discussions; 5
hours for preparation of two ex
parte applications to
continue trial; one (1) hour for review of motion for release of bond; one (1)
hour for court appearances; 15 hours for mediation; and 12.5 hours to prepare
the instant motion for attorney’s fees. (Id., ¶
8(a)-(l).)
Mr. Haulk sets forth the basis for
his fact investigation and legal research for this matter, which included tasks
such as a review of the other awards and decisions entered against Appellant by
Respondent’s co-workers and of Appellant’s appeal of those decisions to the
Superior Court. (Haulk Decl., ¶ 9.) The research and investigation of such
issues required a review of appellate and court records which is reflected in
the time spent on those categories. (Id.)
Mr. Haulk states that he has been
practicing continuously since 2010 and he regularly brings matters to trial.
(Haulk Decl., ¶ 10.) Counsel’s practice is primarily focused on plaintiff’s
side employment matters litigated on a contingent fee basis. (Id., ¶ 11.) Counsel states that he believes his
present and customary hourly rate of $650 per hour is reasonable. (Id.) For the purpose of the instant motion,
Respondent requests his hourly rate of $550 per hour be used to determine a
reasonable attorney fee award. (Id.)
Declaration of Jose Herrera in Support
of the Motion
In support of the motion,
Respondent’s counsel, Jose Herrera (“Herrera”) provides a declaration. Mr. Hererra
states that he spent 46.5 hours litigating this matter as follows: 12 hours for
client communications; zero (0) hours for opposing counsel communications; 4
hours for fact investigation/review of case materials; 6 hours for legal
research; 2 hours for discovery; 2.5 hours for internal meetings/strategy
discussions; 2 hours for review of ex parte applications (applications to
continue trial); 4 hours for preparation of motion for release of bond; one (1)
hour for court appearances; 10 hours for mediation (preparation of mediation
brief and attendance); and 3 hours for review and preparation of the motion for
attorney’s fees. (Hererra Decl., ¶ 2(a)-(l).)
Mr. Herrera states that he was the primary point of contact with
Respondent and regularly spoke with Respondent over the course of their
engagement. (Id., ¶ 3.) Mr. Herrera states that the only formal
discovery that took place in this case was the preparation and service of a
notice of deposition that was completed by Mr. Haulk. (Id., ¶ 3.) However, Mr. Herrera states that he
conducted informal discovery through a Public Records Act Request to secure
records held by the Labor Commissioner related to various claims against
Appellant. (Id., ¶ 3.) Mr. Herrera is the founding partner of
Hauk & Herrera, LLP and has been practicing continuously since 2013. (Id., ¶ 4.) His practice is primarily focused on
plaintiff’s side employment matters litigated on a contingent basis. (Id.) Mr. Herrera is a litigation and trial lawyer and
regularly brings matters through trial. (Id.) His
present and customary hourly rate for employment matters is $650 per hour and
his hourly rate for employment matters in 2023 was $550 per hour. (Id.) His hourly rate for employment matters in 2022
was $475 per hour. (Id.) For the purpose of the motion for attorney’s
fees, Respondent requests that the hourly rate of $550 per hour be used to
determine a reasonable attorney fee award. (Id.)
Analysis
Here, the Court finds that
Respondent is entitled to attorney’s fees in this action as Appellant withdrew
its appeal and dismissed this action against Respondent. As such, Respondent is
entitled to recover his attorney’s fees and costs in connection with
Appellant’s appeal of the Labor Commissioner’s decision pursuant to Arenson, supra, 239 Cal.App.4th 1275, 1280. Moreover, the Court
notes that Respondent’s motion for attorney’s fees and costs is unopposed. The
failure to oppose a motion “creates an inference that the motion is
meritorious.” (Sexton
v. Superior Court (1997)
58 Cal.App.4th 1403, 1410.)
However, the Court finds that
Respondent has not presented any billing records or invoices substantiating the
work done by counsel in connection with the instant action. The declarations in
support of the motion do not attest to the reasonableness or necessity of the
time spent on the tasks set forth in counsel’s declarations. While there is no
requirement that time records be produced under Cruz, supra, 57 Cal.App.5th 221, 238, given that Respondent is
requesting $60,428.20 in attorney’s fees and costs, the Court would like to
review the billing records prior to ruling on the motion. Although the motion
is unopposed, the Court wants to ensure that the requested fees are reasonable.
The Court therefore CONTINUES the
hearing on Respondent’s motion for attorney’s fees and costs to Tuesday, May
28, 2024 at 8:30 AM in this department. The Court ORDERS counsel for Respondent
to file and serve a supplemental declaration or declarations setting forth the
reasonableness of the claimed attorney’s fees and to provide the Court with
billing records for the work done in this case. The Court orders that the
supplemental declaration(s) be filed and served by the close of business on
Monday, May 13, 2024.
It is so
ordered.
Dated:
May 6, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court