Judge: Michael P. Linfield, Case: 20STCV41641, Date: 2022-09-20 Tentative Ruling
Case Number: 20STCV41641 Hearing Date: September 20, 2022 Dept: 34
SUBJECT: Plaintiffs’ Ex Parte Application for Relief from Court Order, or an Order to for a Temporary Stay to File Writ of Mandamus.
MOVING PARTY: Plaintiffs Han Moon and Susan Moon
OPPOSING PARTY: Defendant American Honda Motor Co.
The Court DENIES Plaintiffs’ ex parte to rescind its Order of August 19, 2022. The Court GRANTS a stay to allow Plaintiffs to file a Writ of Mandate, as indicated below.
On August 16, 2022, the Court issued its tentative decision requiring Plaintiffs’ counsel to provide the Court various documents concerning its motion for attorney's fees. Three days later, on August 19, 2022, based on arguments from Plaintiffs’ counsel, the Court modified its tentative by limiting the amount of data required to be submitted to the Court to cases ruled on from 2018 to the present; according to Plaintiff’s counsel all of this information was contained in Plaintiffs’ law firm’s current computers. Later that day, the Court issued its final decision. (See Minute Order of 8/19/22.)
The Court’s August 19, 2022 decision required Plaintiffs’ counsel to produce information to the Court by today, September 20, 2022. Now, one month after receiving the Court’s order, and on the very day that Plaintiffs were ordered to comply, they ask the Court to rescind or stay its August 19, 2022 Order.
Plaintiff’s counsel presents a parade of horribles if this Court were to enforce its 8/19/22 order. Yet they have presented no evidence that any such problems will arise.
At the August 19, 2022 hearing, Plaintiffs’ counsel stated that there were approximately 250 cases that would be encompassed within this Court’s order. This statement, made one month ago by Plaintiffs’ counsel, is somewhat contradicted by today’s motion. In their motion, Plaintiffs’ counsel states that “Plaintiffs indicted that there were approximately 250 cases in which fee motion rulings had been issued since 2018 that were known to be filed in the LASC, and that there were in excess of 300 other cases that were uncategorized, plus additional cases covering the period from 2015 to 2018, which could not be easily identified.” (Motion, p. 1:18-22.) This does not comport with the Court’s notes of the August 19, 2022 hearing. No such statements regarding 300+ other cases were made at the hearing. Further, the Court notes that there is no evidence – i.e., no declaration attached – that indicates any such statement was made. (See, e.g., Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim . . . . Argument of counsel is not evidence.”]; Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [“the arguments of counsel in a motion are not a substitute for evidence, such as a statutorily required affidavit.”])
Counsel now states that “we estimate it would take hundreds of hours” to compile the requested information but supplies no data to support this “estimate.” (Kirnos Declaration, ¶ 6.) The Court questions this estimate for several reasons. First, Plaintiffs’ counsel had no problem compiling 85 attorney's fees orders that they attached to their original motion; some of those orders dated back to 2008. (See Kirnos Declaration, ¶ 99, Exh. JJJ, filed 7/20/22.) Second, the drafting of the motion for attorney's fees – including the Kirnos “supporting declaration” and exhibits – took only 6.4 hours (not “hundreds of hours”). (See Kirnos Declaration, Exh. A, [billing entries for 7/11/22 – 7/19/22] filed 7/20/22.) Third, at least three of the items on the required Excel Spreadsheet are simple mathematical calculations that can be performed instantaneously by Excel. (See items nos. 7, 10 and 13, Minute Order of 8/19/22.)
Further, Plaintiffs’ counsel indicated that they would be including the time spent in compiling this additional data in any revised motion for attorney's fees they submitted. Since “fees on fees,” – i.e., fees incurred in litigating the award of attorney fees – are allowable [see, e.g., Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1141] there may be no out-of-pocket cost to Plaintiffs’ counsel for complying with this Order.
Plaintiffs’ counsel also argues “staffing issues due to vacation, departures of two attorneys, and Covid infection” have prevented them from complying with this court’s August 19, 2022 order. (See Motion, p. 3:4-6.) The Court does not believe this argument. First, counsel requested attorney's fees for 18 attorneys who allegedly performed work on this case. (See Kirnos Declaration, Exh. A, p. 21, filed 7/20/22.) With 18 attorneys working on this case, the above “staffing issues” should not have impacted counsel’s compliance with this Court’s order. Second, Plaintiffs’ counsel stated during oral argument that during the past month, they had not compiled any of the information that the Court had ordered be compiled on August 19, 2022. This lack of compliance can be more easily explained by intentional noncompliance, not “staffing issues.”
Plaintiffs’ counsel previously submitted 85 “court orders confirming the reasonableness of Plaintiffs’ counsels’ hourly rates and time billed in other Song-Beverly Act cases in Los Angeles County.” (Motion for Attorney's Fees, p. 9:15-17 and accompanying Kirnos Decl., ¶¶ 41-99, Exs. D-JJJ.) Four days ago, in a two-sentence filing, Plaintiffs’ counsel claims to have “withdrawn” these 85 exhibits. (See Plaintiffs’ Notice of Withdrawal of Exhibits, filed 9/16/22.) There was no request for a Court order striking these exhibits, and no such order was issued. The Court views Plaintiffs’ filing as an improper attempt to retroactively void or nullify this Court’s 8/19/22 order. This is akin to the “gamesmanship” that was criticized by the Court of Appeal when a party withdrew, revised and resubmitted a motion after the trial Court has issued an adverse tentative ruling. (See Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917-918.)
The Court’s August 19, 2022 order simply requires Plaintiff’s counsel to provide the court with data regarding all 250 attorney's fees motions they have presented to LASC judges, not just the 85 motions that they had attached as exhibits to their motion. Although they have allegedly “withdrawn” their previous 85 filed rulings on attorney's fees, Plaintiffs’ counsel apparently still believes that it is proper to cite to previous trial court rulings in other cases; even in this Ex Parte Motion, Plaintiffs’ counsel wishes this Court to consider previous rulings on attorney's fees. (Kirnos Declaration, ¶ 8, Exhs. B-E.)
The Court has not requested any confidential information or trade secrets. None of the information requested by the Court is privileged; on the contrary, all of the information is in the public record. And any privilege that Plaintiffs’ counsel may have had in these records has been waived by their including 85 attorney's fees requests as exhibits to their original motion for attorney's fees.
It has often been said that “honesty is the best policy.” But being honest with the Court is more than just a good policy; it is a requirement of all members of the bar. “Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.” (Paine v. State Bar (1939) 14 Cal. 2d 150, 154; see also Di Sabatino v. State Bar (1980) 27 Cal. 3d 159, 162-163; Garlow v. State Bar (1982) 30 Cal. 3d 912, 917.)
“As an officer of the court and member of the bar, the lawyer is obligated to use only such means as are consistent with truth: he may not seek to mislead a judge by artifice or suppress evidence he has a legal obligation to reveal. (Rules Prof. Conduct, rules 5-220, 5-200 (A), (B).) In the final analysis, we cannot accept the notion that a selective recitation of facts satisfies the rules: half the truth in this case is just as misleading as a complete fabrication.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
This Court has made no finding whether the exhibits attached to Plaintiff’s attorney’s fees motion are representative of all the rulings on their motions, or whether Plaintiffs’ counsel has misled the Court by attaching a non-representative subset of rulings. One of the purposes of the Court’s August 19, 2022 order is to help the Court understand whether the facts presented by Plaintiffs’ counsel told the full story, or whether the information that counsel “presented to the Court [was] ‘cherry-picked’ and is not representative of all the rulings by LASC judges in Plaintiffs’ counsel’s cases.” (See Minute Order, 8/19/22.)
If Plaintiffs’ counsel needed an extra few days to compile the information ordered by the Court, they could have requested an extension of time last week, two weeks ago, or three weeks ago. Or, if they believed that the Court’s order was legally incorrect, they could have filed a writ of mandate at any time during the past four weeks. They chose not to do so. Instead, they waited until the very day that they were ordered to comply before asking the Court to stay its order.
Plaintiffs’ counsel in asked in its Ex Parte Motion and during oral argument that the Court reconsider its August 19, 2022 order. The Court denies this request; the time to file a motion for reconsideration has long since lapsed. (See CCP § 1008.)
Plaintiffs’ ex parte for relief from this Court’s order of August 18, 2022 is DENIED.
Nonetheless, the Court will stay enforcement of its order to allow Plaintiffs to belatedly seek a writ of mandate. Plaintiffs are given until September 30, 2022 to file a writ of mandate. If Plaintiff chooses not to petition for a writ of mandate on or before September 30, 2022, then Plaintiff is ordered to comply with this Court’s previous order of 8/19/22 by October 14, 2022. If Plaintiff files for a writ of mandate on or before September 30, 2022, then this Court’s order is stayed until either: 1) two weeks after the Court of Appeal denies Plaintiffs’ request for a writ of mandate; or 2) such other time as the Court of Appeal decides.
The Court schedules a Status Conference for October 17, 2022
at 8:30 am.