Judge: Michael P. Linfield, Case: 20STCV23817, Date: 2022-09-20 Tentative Ruling
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Case Number: 20STCV23817 Hearing Date: September 20, 2022 Dept: 34
SUBJECT: Motion for Attorneys’ Fees
Moving
Party: Plaintiff Brenda
Baca
Resp.
Party: Defendant City of Los Angeles
The Court GRANTS Plaintiff Brenda Baca’s Motion for Attorneys’
Fees in the amount of $997.690.00. The
Court will issue its ruling regarding costs on October 14, 2022, when the Court
rules on Defendant’s Motion to Tax Costs.
PRELIMINARY COMMENT:
The Court is somewhat surprised at the
cursory opposition filed by Defendant City of Los Angeles. The MPA accompanying the opposition is only
three pages long. It does not cite to
any cases, and only cites (in passing) to one statute. (See Opposition, and Opposition, p.
3:4-5.) The Court would have expected a
more substantial and substantive opposition to a request for attorney's fees of
almost one million dollars.
BACKGROUND:
On June 24, 2020, Plaintiff Brenda Baca filed her
Complaint against Defendants City of Los Angeles alleging:
(1) sex/gender harassment in a hostile work environment in violation of
the California Fair Employment and Housing Act (“FEHA”); (2) retaliation in
violation of FEHA; and (3) failure to prevent discrimination and retaliation
from occurring or continuing in violation of FEHA.
Prior to trial, Plaintiff dismissed her third cause
of action for failure to prevent discrimination.
On July 29, 2022, after a four-day jury trial, the
jury in favor of Plaintiff on both
causes of action and awarded her damages of $2,500,000.00.
On August 19, 2022, Plaintiff filed her Motion for
Attorneys’ Fees, Costs, and Expert Witness Fees (“Motion for Attorneys’ Fees”).
Plaintiff moves the Court for an order awarding: (1) $997,690.00 in statutory
attorneys’ fees (including a lodestar amount of $498,845.00 with a requested
multiplier of 2.0); (2) $21,402.95 in costs; and (3) $7,022.00 in expert
witness fees. Plaintiff concurrently filed: (1) Request for Judicial Notice;
(2) Compendium of Federal Authorities; (3) Compendium of Declarations with
Exhibits; and (4) Memorandum of Costs.
On September 6, 2022, Defendant filed its Opposition
to Plaintiff’s Motion for Attorneys’ Fees (“Opposition”). Defendant argues: (1)
that the requested hourly rate of $850 per hour for Plaintiff’s counsel who are
partners is excessive; (2) that the trial hours of a counsel who is an
associate should be excluded as he did not participate in the trial; and (3)
that, other than the fact that Plaintiff’s counsel took the case on a
contingency fee basis, there are no special circumstances in this case upon
which the Court should award a multiplier.
Also on September 6, 2022, Defendant filed its Motion
to Tax Costs. Defendant moves the Court to tax the following costs: (1) expert
witness fees; (2) trial transcripts; and (3) mediation costs. The hearing for
the Motion to Tax costs is scheduled for October 14, 2022.
On September 13, 2022, Plaintiff filed her Reply in
Support of Her Motion for Attorneys’ Fees (“Reply”). Plaintiff argues: (1) that
the hourly rates of the partners are reasonable, fair market rates; (2) that a
multiplier is appropriate in this case; (3) that the associate performed
necessary work for his trial fee; and (4) that Plaintiff is entitled to expert
witness fees pursuant to Government Code § 12965, subdivision (c)(6). Plaintiff
concurrently filed her Objection to Exhibit 1 of Defendant’s Opposition.
ANALYSIS:
I.
Request for Judicial Notice
Plaintiff
requests judicial notice of:
(1)
Minute Order dated November 9, 2017 in
the case of Pearl v. City of Los Angeles, case number BC518568;
(2)
Declarations submitted in support of a
motion for attorneys’ fees in the case of Bustillos v. Villa Blanca
Restaurant, et al., case number BC493853;
(3)
Minute Order dated November 17, 2014
in the case of Bustillos v. Villa Blanca Restaurant, et al., case number
BC493853.
Defendant did
not file a response to Plaintiff’s Request for Judicial Notice.
The Court
denies Plaintiff’s request to take judicial notice of these items because the
Court finds these documents irrelevant to its determination of the issues
presented. “Although a court may judicially notice a variety of matters
(Evid. Code, § 450 et seq.), only relevant material may be
noticed.” (American Cemwood Corp. v.
American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)
II.
Evidentiary Objection
Plaintiff
objects solely to Exhibit 1 of Defendant’s Opposition, titled “2021 Real Rate
Report: The Industry’s Leading Analysis of Law Firm Rates, Trends, and
Practices.” The title page of the document indicates that it was created by the
company Wolters Kluwer. Plaintiff objects on the grounds of lack of foundation
and hearsay.
The Court
OVERRULES the objection. “Evidence of a statement, other than an
opinion, contained in a tabulation, list, directory, register, or other
published compilation is not made inadmissible by the hearsay rule if the
compilation is generally used and relied upon as accurate in the course of a
business as defined in Section 1270.” (Evid. Code, § 1340.) “Historical works, books of science or art,
and published maps or charts, made by persons indifferent between the parties,
are not made inadmissible by the hearsay rule when offered to prove facts of
general notoriety and interest.” (Evid. Code, § 1341.)
III.
Legal Standard
A.
Attorneys’ Fees as Costs
Attorneys’ fees are allowed as costs when
authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd.
(a)(10)(B).)
“If a statute of this state refers to the award of
“costs and attorney’s fees,” attorney’s fees are an item and component of the
costs to be awarded and are allowable as costs pursuant to subparagraph (B) of
paragraph (10) of subdivision (a). A claim not based upon the court’s
established schedule of attorney’s fees for actions on a contract shall bear
the burden of proof.” (Code Civ. Proc., § 1033.5, subd. (c)(5)(A).)
B.
Attorneys’ Fees under FEHA
“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).)
C.
Prevailing Party
“‘Prevailing party’ includes the party with a net monetary recovery, a
defendant in whose favor a dismissal is entered, a defendant where neither
plaintiff nor defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. If any party
recovers other than monetary relief and in situations other than as specified,
the ‘prevailing party’ shall be as determined by the court, and under those
circumstances, the court, in its discretion, may allow costs or not and, if
allowed, may apportion costs between the parties on the same or adverse sides
pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd.
(a)(4).)
D.
Lodestar
“[T]he lodestar adjustment method,
including discretion to award fee enhancements, is well established under
California law.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137.)
“In our view, the Supreme Court
clearly has indicated that the court's discretion in awarding attorney fees is,
initially (‘absent circumstances rendering the award unjust’), to be exercised
so as to fully compensate counsel for the prevailing party for services
reasonably provided to his or her client. The basis for the trial court's
calculation must be the actual hours counsel has devoted to the case, less
those that result from inefficient or duplicative use of time. Then the court
must adjust the resulting fee to fulfill the statutory purpose of bringing ‘the
financial incentives for attorneys enforcing important constitutional rights …
into line with incentives they have to undertake claims for which they are paid
on a fee-for-service basis.’” (Horsford v. Board of Trustees of California
State University (2005) 132 Cal.App.4th 359, 395 (quoting Ketchum,
supra, at 1132 and 1133).)
“Testimony of an attorney as to the number
of hours worked on a particular case is sufficient evidence to support an award
of attorney fees, even in the absence of detailed time records.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)
“In
challenging attorney fees as excessive because too many hours of work are
claimed, it is the burden of the challenging party to point to the specific
items challenged, with a sufficient argument and citations to the evidence.
General arguments that fees claimed are excessive, duplicative, or unrelated to
not suffice.” (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th
550, 564.)
E.
Multiplier
“Under our precedents, the unadorned
lodestar reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent
risk, extraordinary skill, or any other factors a trial court may consider
under Serrano III.
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,
supra, at 1138 (emphases in original) (citing Serrano v. Priest (1977)
20 Cal.3d 25).)
“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. In
each case, the trial court should consider whether, and to what extent, the
attorney and client have been able to mitigate the risk of nonpayment, e.g.,
because the client has agreed to pay some portion of the lodestar amount
regardless of outcome. It should also consider the degree to which the relevant market
compensates for contingency risk, extraordinary skill, or other factors
under Serrano III. We emphasize that when
determining the appropriate enhancement, a trial court should not consider
these factors to the extent they are already encompassed within the lodestar.
The factor of extraordinary skill, in particular, appears susceptible to
improper double counting; for the most part, the difficulty of a legal question
and the quality of representation are already encompassed in the lodestar. … Thus,
a trial court should award a multiplier for exceptional representation only
when the quality of representation far exceeds the quality of representation
that would have been provided by an attorney of comparable skill and experience
billing at the hourly rate used in the lodestar calculation. Otherwise, the fee
award will result in unfair double counting and be unreasonable. Nor should a
fee enhancement be imposed for the purpose of punishing the losing party.” (Id.
at 1138–39 (emphasis in original).)
IV.
Discussion
A. Attorneys’
Fees
1. Attorneys’
Fees as Recoverable Costs
Attorneys’ fees are statutorily provided for violations of FEHA. (Gov.
Code, §§ 12940, subd. (a) and 12965, subd. (c)(6).) Attorneys’ fees are thus
allowed here as costs. (Code Civ. Proc., §§ 1033.5, subd. (a)(10)(B) and 1033.5, subd.
(c)(5)(A).) The prevailing party is entitled here as a matter of right to
recover costs. (Code Civ. Proc., § 1032, subd. (b).) Defendant City of Los
Angeles may have costs awarded against it on the same basis as against any
other party. (Code Civ. Proc., § 1029.)
2. Prevailing
Party
The jury found in favor of Plaintiff on both counts considered and
awarded Plaintiff damages of $2,500,000.00. (Minute Order, July 29, 2022, p.
2.)
It is undisputed that Plaintiff
is the prevailing party in this litigation.
3. Hourly
Rates
Plaintiff’s counsel charged the following hourly rates: $850 per hour for
firm partners Yuk K. Law and Kent T. Brandmeyer; $450 per hour for firm
associates Kevin P. Miller and Trevor C. Wong; and $175 per hour for firm
paralegal Amber Carlton.
Plaintiff’s counsel argue that these
rates are reasonable and “well within the rates charged by similar caliber
attorneys performing work of similar complexity in the relevant market.” (Mot.,
pp. 7–8.)
Defendant argues that the partners’ $850
hourly rate is excessive. (Opposition, p. 2:16–19.) Defendant cites the
relevant section of the “2021 Real Rate
Report” in support of its argument. (Id. at p. 3; Id. at Ex. 1,
118.) Notably, Defendant does not argue that the rates of the associates or
paralegals is excessive.
Plaintiff’s counsel replied by discussing the experience of the
firm partners. Counsel Law “has been in practice for 37 years and tried as lead
counsel 110 civil jury trial to verdict.” (Reply, p. 2:8–9.) Counsel Brandmeyer
“has been in practice for 33 years and tried as lead counsel 76 civil jury
trials to verdict.” (Id. at p. 2:9–10.)
For
the following reasons, the Court concludes that the partners’ rate of $850 per
hour is reasonable.
The
Court notes that, even considering the 2021 Real Rate Report, an hourly rate of $850 is within the
reasonable rate for an experienced employment law attorney in Los Angeles. The 2021 Real Rate
Report states: (1) that the median hourly rate is $655; (2) that the mean
hourly rate for 2021 is $703 per hour; (3) that the mean hourly rate increased
by $31 from 2019 to 2020 and by $37 from 2020 to 2021, and that the third
quartile hourly rate is $855. In other words: (1) a fair estimate of the mean
2022 hourly rate is that it would be approximately $735 per hour; and (2)
Counsel Law and Brandmeyer are charging a rate that, in 2021, would have been
less than the top 25% of comparable attorneys in the relevant community were
charging. Interestingly, the Court notes that the 2021 Real Rate Report does
not even indicate the hourly rate for the top quartile of attorneys. The Court
wonders if this omission was deliberate. (See Opposition, p. 3:1-12 ; Exh. 1,
p. 118.)
The Court also concludes that the rates for
the associates and the paralegal – rates that were not questioned by Defendant
– are also reasonable.
4. Reasonable
Hours Incurred
Plaintiff’s counsel list a total of 762.20 hours that they worked on
this: (1) 262.20 hours by Counsel Brandmeyer; (2) 132.90 hours by Counsel Law;
(3) 264.20 hours by Counsel Miller; (4) 94.70 hours by Counsel Wong; and (5)
8.60 hours by Ms. Carlton. The exact breakdown of hours is provided.
(Compendium of Decls., Ex. 1.)
The only hours that Defendant opposes are the hours listed for Counsel
Miller’s presence at trial. Defendant argues that Counsel Miller did not
participate in trial, did not examine any witnesses, and did not participate in
opening or closing arguments, and thus that Counsel Miller’s presence was
unnecessary and duplicative. (Opposition, p. 3:25–27.)
Plaintiff’s counsel reply by arguing
that Counsel Miller’s hours incurred during Trial are reasonable because: (1)
he assisted in jury selection by taking notes; (2) he arranged with and
prepared various witnesses while they were in court; (3) he organized and
worked with exhibits at Trial; (4) he attended conferences with counsel and the
undersigned judicial officer to assist with understanding the issues; (5) he
provided Counsel Law with insight and information obtained during pretrial
investigation and discovery (noting that Counsel Miller attended all
depositions in the case); and (6) he helped Counsel Law prepare for witness
examinations and for closing argument. (Reply, p. 4:10–23.)
The Court finds that Counsel Miller’s
presence at Trial was neither unnecessary nor duplicative. Rather, Counsel
Miller’s work at Trial assisted Plaintiff in reaching an outcome
that probably exceeded her hopes. , The Court concludes that Counsel
Miller’s hours incurred during Trial were reasonable.
As stated above, “[i]n
challenging attorney fees as excessive because too many hours of work are
claimed, it is the burden of the challenging party to point to the specific
items challenged, with a sufficient argument and citations to the evidence.” (Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.) Defendant has not challenged any of the other
hours requested by Plaintiff.
The Court finds that all
762.20 attorney's fees hours requested
by Plaintiff are reasonable.
5. Multiplier
Plaintiff’s counsel argue that the Court should apply a 2.0 times
enhancement (i.e., multiplier) to the award of attorneys’ fees for the
following reasons: (1) the case was taken on contingency; (2) the case
precluded other work by the small law firm; (2) Counsel obtained exceptional
results, particularly considering the circumstances of the case; (3) the case
advanced the public interest; and (4) Counsel exhibited skill in presenting the
case. (Mot., p. 9:13–16.) , Plaintiff’s Counsel
also argues that the contingent risk “requires a multiplier.” (Id. at
p. 9:24.)
Defendant argues that a multiplier
should not be awarded because the case was not complex and did not require
superior skill or expertise. , Opposition p. 3:16–19.) Defendant further argues
that a multiplier is not required simply because the case was taken on
contingency. (Id. at p. 3:19–20.)
The Court agrees with Defendant that
contingency cases do not automatically require a multiplier. (Ketchum, supra, at 1138
[“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.”].)
Yet, for
multiple reasons, the Court concludes
that a multiplier is appropriate.
First, the Court finds that this
case was taken on contingency. Thus, Plaintiff’s counsel would only be paid if
Plaintiff prevailed in this action.
Second, because this case was taken on a contingent
basis, Plaintiff’s counsel has not been paid during the more than two years
that this case has been litigated. Defense
counsel has (presumably) been paid monthly since the case was filed in January
2020; Plaintiff’s counsel has had to front expenses and has not been paid any
attorneys fees.
Third, the Court finds that there
was preclusion of other work taken so that Plaintiff’s counsel could work on
this matter. (Mot., p. 12.)
Fourth, the Court finds that the
experience of Plaintiff’s counsel clearly made a difference in the outcomes
achieved.
Fifth the Court finds that the
outcome achieved was exceptional: the
jury found for Plaintiff on all counts
tried and unanimously awarded her
$2,500,000.00 in damages.
Finally, the Court finds
that the outcome did advance the public interest. As discussed in FEHA, the
public interest is advanced by holding accountable those who would discriminate
in employment based on sex; this is true
whether the discriminating party is a private corporation or a public entity
such as the City of Los Angeles. “The award of reasonable attorney fees
accomplishes ‘the Legislature's expressly stated purpose of FEHA “to provide
effective remedies that will eliminate these discriminatory practices.”
(Gov.Code, § 12920.)’” (Horsford v. Bd. Of Trustees Of California State
Univ. (2005) 132 Cal. App. 4th 359, 394, quoting Flannery v. Prentice (2001)
26 Cal.4th 562, 583.)
Upon
considering these findings, the Court concludes that the requested multiplier
enhancement of 2.0 times is appropriate here, and the Court shall award such an
enhancement.
The Court notes in passing that the
application of a 2.0 multiplier is not unusual and that California
courts have often affirmed multipliers of 2.0 or above. (E.g., Weshba
v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 255 [“Multipliers can
range from 2 to 4 or even higher.”]; In
re Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 512
[affirming multiplier of 2.52]; Chavez v.
Netflix, Inc. (2008) 162 Cal.App.4th 43, 66 [affirming multiplier of 2.5]; City of Oakland v. Oakland Raiders (1988)
203 Cal.App.3d 78 [affirming multiplier of 2.34]; Coalition for L.A. County Planning in the Public Interest v. Board of
Supervisors (1977) 76 Cal.App.3d 241, 251 [affirming multiplier of
2.04].)
6. Total
Amount of Attorneys’ Fees
The Court finds that the lodestar for attorneys’ fees incurred by
Plaintiff’s counsel is $498,845.00. Applying a 2.0 multiplier, the total amount
of attorneys’ fees is $997,690.00
V.
Conclusion
The Court GRANTS Plaintiff Brenda Baca’s Motion for Attorneys’
Fees in the amount of $997.690.00.