Judge: Michael P. Linfield, Case: 20STCV00320, Date: 2023-06-29 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 20STCV00320    Hearing Date: April 18, 2024    Dept: 34

SUBJECT:        Motion for Award of Attorney’s Fees, Expert Fees, and Interest

Moving Party: Plaintiffs Stephen Glick and Alfred Garcia

Resp. Party:    Defendant City of Los Angeles

The Motion for Award of Attorneys’ Fees is GRANTED in part.

Attorneys’ fees are granted in the total amount of $1,339,980.31.  Interest will accrue at the rate of 7% per year as of the date of entry of Judgment.

BACKGROUND:

On January 3, 2020, Plaintiffs Stephen Glick and Alfred Garcia filed their Complaint against Defendant City of Los Angeles on causes of action for discrimination and retaliation, both in violation of the Fair Employment and Housing Act (“FEHA”).

From July 5 to 12, 2023, the Court held a jury trial in this matter. The Jury found in favor of both Plaintiffs and against Defendant on both causes of action. For Plaintiff Stephen Glick, the Jury found $8,621,358.00 in damages, which consisted of $5,000,000.00 in past non-economic damages, $3,000,000.00 in future non-economic damages, and $621,358.00 in future economic damages. For Plaintiff Alfred Garcia, the Jury found $4,500,000.00 in damages, which consisted of $3,000,000.00 in past non-economic damages and $1,500,000.00 in future non-economic damages.

On September 20, 2023, the Court entered Judgment in this matter.

On November 16, 2023, the Court: (1) denied Defendant’s Motion for Judgment Notwithstanding the Verdict; and (2) granted in part Defendant’s Motion to Tax Costs.

On November 30, 2023, the Court granted Defendant’s Motion for New Trial.

On December 19, 2023, Plaintiffs filed their respective Notices of Rejection of the Court’s Reduction of Damages in Conditional New Trial Order.

On December 21, 2023, Plaintiffs appealed the Court’s grant of the Motion for New Trial.

On January 2, 2024, Defendant cross-appealed the Judgment. 

On March 14, 2024, Plaintiffs filed their Motion for Award of Attorney’s Fees, Expert Fees, and Interest (“Motion for Attorneys’ Fees”). In support of their Motion for Attorneys’ Fees, Plaintiffs concurrently filed: (1) Declaration of Dan Stormer; (2) Declaration of Matthew S. McNicholas; (3) Declaration of Jason L. Oliver; and (4) Declaration of Douglas D. Winter.

On March 15, 2024, Plaintiffs filed their Notice of Errata.

On March 27, 2024, Defendant filed its Opposition to the Motion for Attorneys’ Fees. In support of its Opposition, Defendant concurrently filed Declaration of Kim Karelis.

On April 2, 2024, Plaintiffs filed their Reply in support of the Motion for Attorneys’ Fees.

On April 3, 2024, Plaintiffs filed their Objections to Declaration of Kim Karelis.

ANALYSIS:

I.          Evidentiary Objections

Plaintiffs filed evidentiary objections to Defendant’s evidence. The following are the Court’s rulings on these objections.

        Although the Court has sustained one objection, many of the objections are frivolous.  To cite but the first example, Plaintiff objects to the statement in the declaration of Kim Karelis that “I was retained by the City to prepare an expert opinion regarding what would be a reasonable and necessary lodestar fee for the work performed by plaintiffs’ counsel, . . .” (Plaintiff’s Objections, Objection No. 1.)  Plaintiff objects to this statement, inter alia, on the grounds of “lack of personal knowledge”, “inadmissible opinion”, “improper legal conclusion”, and “improper Expert Testimony on Issue of Law.”  These objections are frivolous.  “This is hardly good advocacy, and it unnecessarily overburdens the trial court.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254, fn. 3.) 

        In addition, Plaintiffs object to various portions of the memorandum in Defendant’s Opposition. The Court OVERRULES these objections. Memoranda do not consist of evidence.

II.       Legal Standard

“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.” (Code Civ. Proc., § 1032, subd. (b).)

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

III.     Discussion

A.      The Parties’ Arguments

Plaintiffs move the Court to award $1,912,950.00 in attorney’s fees, which would consist of:

(1)       $907,506.25 in lodestar attorney’s fees;

(2)       $907,506.25 for a 2.0 multiplier on the lodestar;

(3)       $54,225.00 in fees for the Motion for Attorneys’ Fees;

(4)       $27,112.50 for a 1.5 multiplier on the motion fees; and

(5)       $16,600.00 in expert fees.

(Reply, p. 10:3–8.)

        Plaintiffs argue: (1) that they are entitled to recover attorneys’ fees as Plaintiffs who prevailed on a FEHA claim; (2) that the lodestar method is appropriate for calculating fees; (3) that the number of hours expended by Plaintiffs’ Counsel was reasonable; (4) that the hourly rates of Plaintiffs’ Counsel were reasonable; (5) that a 2.0 multiplier of the lodestar is reasonable and should be awarded; (6) that Plaintiffs are entitled to recovery of their expert witness fees; and (7) that Plaintiffs are entitled to interest on their fees and costs from the date Judgment was entered. (Motion for Attorneys’ Fees, pp. 3:8, 4:7, 5:15, 7:19, 11:6, 13:7, 14:11, 14:23–24.)

        Defendant argues: (1) that the requested hourly rates are excessive; (2) that Plaintiffs seek fees for work that was administrative, non-billable, duplicative, and excessive; (3) that a multiplier should not be awarded given this case was not complex and did not require superior skill or expertise; and (4) that Plaintiffs waived their right to seek expert witness fees. (Opposition, pp. 2:11, 3:4–5, 4:15–16, 4:22–23.)

        Plaintiffs reiterates their arguments in their Reply.

B.      Authority for Fees & Prevailing Party

1.      Legal Standard

“It is an unlawful employment practice . . . [f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (c)(6).)

The relevant section of FEHA “grants the trial court discretion to award attorney fees to a prevailing party.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 976.) “This statute has been interpreted to mean that in a FEHA action a trial court should ordinarily award attorney fees to a prevailing plaintiff unless special circumstances would render a fee award unjust. (Ibid.)

2.      Discussion

Attorneys’ fees pursuant to FEHA are applicable here. Defendant does not dispute this.

Plaintiffs are the prevailing party. The Jury found in favor of them and against Defendant on both causes of action tried. Even with the remittitur, Plaintiffs are still entitled to an award of damages. There are no circumstances here that would render a fee award unjust.

        The Court exercises its discretion here to award Plaintiffs attorneys’ fees. (Gov. Code, § 12965, subd. (c)(6).)

C.      Method of Calculation

1.      Legal Standard

“An attorney fee award under the FEHA is designed to incentivize and reward a plaintiff's attorney in a civil rights case. Trial courts first determine a lodestar amount: the hours spent times a reasonable hourly rate. Courts may then increase the amount, usually by applying a multiplier to the lodestar. The multiplier is to compensate for extrinsic factors such as the risk of nonpayment (the contingency factor), the public interest advanced by the case, the difficulty of the issues involved, and the skill of the attorneys.” (Caldera v. Dep’t of Corr. & Rehab. (2020) 48 Cal.App.5th 601, 604, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135.)

2.      Discussion

The Parties appear to agree that the lodestar adjustment method is appropriate, although Defendant argues that a multiplier is not appropriate.

The Court will use the lodestar adjustment method and then considers whether a multiplier is appropriate and if so, how much the multiplier should be.

D.      Reasonableness of the Attorneys’ Fees Claimed

1.      Legal Standard

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances¿of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. The prevailing party and fee applicant bears the burden of showing that the fees incurred were reasonably necessary to¿the conduct of the litigation, and were reasonable in amount. It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up].)

2.      Reasonableness of the Hourly Rates

Plaintiffs’ Counsel claim the following hourly rates:

(1)       $1,250.00 per hour for Counsel Matthew McNicholas;

(2)       $1,000.00 per hour for Counsel Douglas Winter;

(3)       $900.00 per hour for Counsel Jason Oliver;

(4)       $700.00 per hour for Counsel Abel Nair;

(5)       $500.00 per hour for Counsel Aleen Sorejian; and

(6)       $225.00 per hour for Paralegal Dawn McGuire.

(Motion for Attorneys’ Fees, pp. 10:23–27, 11:2–3.)

        The Court has considered the Declarations of Matthew McNicholas, Douglas Winter, and Jason Oliver, which directly described the experiences Plaintiffs’ Counsel (and Paralegal Dawn McGuire) have had.  The Court also considered the Declaration of Dan Stormer, who offered his opinion regarding the reasonableness of the requested hourly rates. Finally, the Court considered the Declaration of Kim Karelis, who offered her opinion as to why the hourly rates were not reasonable.

Upon considering the materials presented, the Court determines that the hourly rates for Counsel McNicholas (who has more than 25 years of legal experience and extensive trial experience), Counsel Winter (who has more than 30 years of legal experience and extensive trial experience), Counsel Oliver (who has more than 25 years of legal experience and extensive trial experience), counsel Nair (who has 20 years of legal experience but not particularly extensive trial experience) and Paralegal Dawn McGuire (who has almost 40 years of paralegal experience) are all reasonable.

The Court further determines that the hourly rate for Counsel Sorejian (who was sworn in as an attorney in 2023) is unreasonable. The Court will allow a $300.00 per hour rate for Counsel Sorejian.

3.      Reasonableness of the Number of Hours

Plaintiffs’ Counsel claim that 1,149.75 hours of work were incurred on the merits of this matter, which is comprised of:

(1)       182.75 hours by Counsel Matthew McNicholas;

(2)       317 hours by Counsel Douglas D. Winter;

(3)       230.25 hours by Counsel Jason Oliver;

(4)       112 hours by Counsel Abel Nair;

(5)       27 hours by Counsel Aleen Sorejian; and

(6)       280.75 hours by Paralegal Dawn McGuire.

(Motion for Attorneys’ Fees, pp. 10:23–27, 11:2–3.)

        (The hours spent on the fee motion will be discussed separately infra.)

        The Court considered the same declarations as for the hourly rates. The Court also considered the various invoices submitted in connection with these declarations.

        The Court further considered what has occurred in this litigation.

During the first two years of this matter (2020–2021), the main issue was discovery and the litigation of a Pitchess motion.

During the third year of this matter (2022), the Court denied Defendant’s untimely motion for judgment on the pleadings and granted in part Plaintiffs’ discovery motion.

During the fourth year of this matter (2023), the Court denied Defendant’s motion for mental health examinations of Plaintiffs, ruled on trial-related motions in limine, granted in part Plaintiffs’ unopposed motion for production of documents at trial, held a six-day jury trial in this matter, and ruled on various post-judgment motions. Among other things, the Court granted Defendant’s Motion for New Trial and conditionally ordered a new trial limited to the issue of damages.

        Based on all of these considerations, it appears to the Court that 1,149.75 hours requested is reasonable. 

The Court therefore awards Plaintiffs’ counsel a lodestar of $902,331,25.

4.      Fees for the Fees Motion

        Plaintiffs’ Counsel requests $54,225.00 for work on the Motion for Attorneys’ Fees — as well as a 1.5 multiplier on that amount. (Reply, p. 10:3–8.)

        This is an unreasonable amount of money to request for a relatively simple copy-and-paste motion that was lightly opposed by Defendant. (The Court notes that Defendant’s opposition is barely five pages long.)  There was no special skill required for this fee motion; although the Court understands the importance of an attorney's fees motion for an attorney working on a FEHA case, an associate could have written this motion.

        The Court will allow $15,000.00 in total fees for the work incurred on the Motion for Attorneys’ Fees. The Court does not award a multiplier on the attorney's fees motion because this motion itself was not taken on a contingent basis; i.e., by the time the attorney's fees motion was written, Plaintiffs had already won their trial and attorney's fees was an all-but certainty.  (The multiplier enhancement on the merits lodestar will be discussed infra.)

E.      Multiplier to the Merits Lodestar

1.      Legal Standard

“The purpose of the multiplier is to reward the prevailing attorney with an increased fee in light of the extrinsic Ketchum factors: the importance and difficulty of the litigation; the novelty of the issues involved; the risk of nonpayment for the attorney's services (the contingency factor); the skill of the attorney in presenting the case; and the magnitude of the results obtained.” (Caldera, supra, 48 Cal.App.5th at p. 607, citing Ketchum, supra, 24 Cal.4th at pp. 1132–1134.)

“Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum, supra, 24 Cal.4th at p. 1138, emphasis omitted.)

2.      Discussion

Plaintiffs request a multiplier enhancement of 2.00. (Reply, p. 10:3–6.)

        Defendant argues that no multiplier should be awarded because this case was not complex, did not require superior skill or expertise, and should not have been difficult for Plaintiffs’ Counsel given the experience reflected in their declarations. (Opposition, p. 4:15–21.)

        The Court finds that Plaintiffs’ Counsel have met their burden and that a multiplier is appropriate in this case.

a.       Time Delay of Litigation

i.            Legal Standard

“The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; accord Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1217–1218 and Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1252.)

ii.          Discussion

In contrast to Defense Counsel, who presumably gets paid monthly, Plaintiffs’ Counsel have not been paid for the more than four years that this action has been pending.

        FEHA cases are based on statutes that are designed to protect against discrimination, and there is a significant chance that FEHA plaintiffs will not win their cases. If a plaintiff’s attorney is paid no more than the lodestar for a FEHA case, “competent counsel will be reluctant to accept fee award cases.” (Ketchum, supra, 24 Cal.4th at p. 1133 [cleaned up].)¿

The normal interest rate in California is 10%, which is the equivalent of a 1.10 multiplier. However, not all of an attorney’s work occurs at the beginning of any given year; therefore, giving a multiplier of 1.1 for each year of work would overcompensate Plaintiffs’ counsel.  For ease of calculation, the Court assumes that the work was performed more-or-less evenly throughout the course of any given year. This means a 1.05 multiplier per year is appropriate to compensate Plaintiffs’ Counsel for the time-value of the money that they would have been paid had the case not been contingent.¿

        Plaintiffs’ Counsel litigated this case from January 2020 to April 2024 without payment. In consideration of this delay and that the statutes under which Plaintiff sued were designed to protect the consumer, the Court awards a 1.25 multiplier to the merits lodestar. This multiplier compensates Plaintiffs’ Counsel for the time value of the money they would have been paid monthly had the case not been contingent.

b.       Substantive Factors

This case involved gender-based discrimination and retaliation by the Los Angeles Police Department against two of its officers. Specifically, Plaintiffs submitted evidence to the Jury for the proposition that Plaintiffs were differentially considered, investigated, and punished by the Los Angeles Police Department based on Plaintiffs’ gender. The Jury considered this evidence and found in favor of Plaintiffs.

The importance of deterring gender-based discrimination and retaliation by the Los Angeles Police Department cannot be overstated. Unfortunately, gender-based discrimination and retaliation claims are neither new nor novel; nonetheless, this case required – and had – highly-skilled attorneys representing the Plaintiffs.

Here, Plaintiffs’ Counsel exhibited a high degree of skill throughout most, but not, parts of the litigation. Specifically, Plaintiffs’ Counsel did well in obtaining evidence during discovery, which can be particularly difficult considering the privileges of the City of Los Angeles and the Los Angeles Police Department. Plaintiffs’ Counsel also did an excellent job in presenting their case to the Jury, prevailing on both causes of action tried.

However, Plaintiffs’ Counsel failed to present adequate (and for some sub-issues, any) evidence regarding damages. This caused the Jury to err in portions of its damages award, which in turn led to Defendant’s successful Motion for New Trial. The upcoming retrial on the issue of damages will be costly for Plaintiffs, Defendant, the Court, and ultimately the public. These expenses were entirely avoidable and indicate that Plaintiffs’ Counsel significantly overreached by trying to avoid evidentiary issues while still obtaining a multi-million damages award. Plaintiffs’ Counsel’s failure to present adequate evidence diminished the magnitude of the results obtained — an important factor when considering a multiplier.

After taking all of this into account, the Court finds that a multiplier enhancement of 1.20 times the merits lodestar is appropriate here. This multiplier enhancement is in addition to the 1.25 multiplier given for the delay in payment. Altogether, this 1.45 multiplier accounts for all of the factors listed in Ketchum and discussed above.

Including the multiplier of 1.45, the court awards Plaintiffs’ counsel attorney's fees of $1,308,380.31 plus an additional $15,000.00 for the attorney's fees motion for a total of $1,323,380.31.

F.       Interest

1.      Legal Standard

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. . . .” (Civ. Code, § 3287, subd. (a).)

“Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.” (Civ. Code, § 3287, subd. (b).)

2.      Discussion

Plaintiffs request interest at the rate of 7% per year from the date of the original entry of Judgment (September 20, 2023) until the Judgment is paid. (Reply, p. 10:9–10.)

Defendant does not oppose this request.

The Court agrees with Plaintiffs’ argument and will allow interest on attorneys’ fees to accrue at the rate of 7% per year as of September 20, 2023.

G.      Expert Costs

Plaintiffs argue that they are entitled to recovery of their expert witness fees. (Motion for Attorneys’ Fees, p. 14:11.)

Defendant argues that Plaintiffs waived their right to seek these fees. (Opposition, p. 4:22–23.)

        The Court agrees with Plaintiff. 

        In arguing for the Court to exercises its discretion to grant expert costs, Plaintiff cites to the recent case of Neeble-Diamond v. Hotel California by the Sea, LLC (2024) 99 Cal.App.5th 551 for the proposition that, in a FEHA case, expert witness fees are for the Court to decide, and hence should not be included in a memorandum of costs.  Neeble-Diamond states, in relevant part: 

In Anthony [v. City of Los Angeles (2008) 166 Cal.App.4^th 1011],   the court concluded the appellant was not required to file a timely cost memorandum to preserve its right to seek expert costs that were not recoverable as a matter of right under Code of Civil Procedure section 1032. As the court pointed out, the cost memorandum applies only to “cost items to which a party is entitled ‘as a matter of right’ ” (Anthony, at p. 1015, 83 Cal.Rptr.3d 306), because “rule 3.1700, ... requires the clerk of the court to ‘immediately enter the costs on the judgment’ if the opposing party does not move to strike or tax costs. [Citation.] By contrast, costs such as expert witness fees not ordered by the court, or attorney fees that require a court determination, may not be ‘immediately enter[ed]’ by the clerk, and instead necessitate a decision by the trial court, exercising its discretion. In short, there would be no point in requiring a party to include in its memorandum of costs those cost items which are awarded in the discretion of the court and thus cannot be entered by the clerk of the court under rule 3.1700.”  (Neeble-Diamond, supra, 99 Cal.App.5th at 558.)

        Plaintiff is correct.

        The Court, in its discretion, will award Plaintiff $16,600.00 in expert witness costs.

IV.      Conclusion

The Motion for Award of Attorneys’ Fees is GRANTED in part.

Attorneys’ fees are granted in the total amount of $1,339,980.31 as indicated in the spreadsheet below.  Interest accrues on this award at the rate of 7% per year as of the date of entry of Judgment.