Judge: Michael P. Linfield, Case: 21STCV17933, Date: 2023-08-16 Tentative Ruling

Case Number: 21STCV17933    Hearing Date: September 20, 2023    Dept: 34

SUBJECT:        Motion for Judgment Notwithstanding the Verdict

Moving Party: Defendant Kelly Pipe Co., LLC

Resp. Party:    Plaintiff Presciliano Contreras

SUBJECT:        Motion for New Trial

Moving Party: Defendant Kelly Pipe Co., LLC

Resp. Party:    Plaintiff Presciliano Contreras

SUBJECT:        Motion for an Order for Pre-Judgment Interest

Moving Party: Plaintiff Presciliano Contreras

Resp. Party:    Defendant Kelly Pipe Co., LLC

SUBJECT:        Motion for an Award of Attorneys’ Fees

Moving Party: Plaintiff Presciliano Contreras

Resp. Party:    Defendant Kelly Pipe Co., LLC

The Motion for JNOV is DENIED.

The Motion for New Trial is DENIED.

The Motion for an Order for Pre-Judgment Interest is GRANTED. Pre-Judgment interest is AWARDED in favor of Plaintiff and against Defendant in the amount of $170,204.41.

Attorneys’ fees are granted in the total amount of $1,649,261.25. This comprises of a lodestar of $1,047,150.00 and a multiplier of 1.575.

BACKGROUND:

On May 12, 2021, Plaintiff Presciliano Contreras filed his Complaint against Defendants Kelly Pipe Co., LLC, JFE Shoji America, LLC, JFE Shoji America Holdings, Inc., JFE Shoji Steel American, Inc., R. Bourgeois JFE Shoji Magnetic Lamination, Inc., Art Shelton, Steve Livingston, and James Fiorillo. The causes of action arise from Plaintiff’s employment with Defendants.

On September 22, 2021, by stipulation of the Parties, the Court dismissed without prejudice Defendants Art Shelton and Steve Livingston from the Complaint.

On January 18, 2022, by stipulation of the Parties, the Court dismissed without prejudice Defendants JFE Shoji America, LLC, JFE Shoji America Holdings Inc., JFE Shoji Steel America, Inc. (erroneously identified in the Complaint as JFE Shoji Steel American, Inc.), and R. Bourgeois JFE Shoji Magnetic Lamination, Inc. from the Complaint.

On January 12, 2023, the Court granted summary judgment in favor of Defendants and against Plaintiff on the fifth and sixth causes of action in the Complaint.

From June 12 to June 16, 2023, the Court held a jury trial in this matter.

On June 16, 2023, the Jury found in favor of Plaintiff and against Defendant Kelly Pipe Co. (“Defendant”) on all causes of action tried: (1) age discrimination; (2) age harassment; (3) retaliation; (4) failure to prevent discrimination; (5) wrongful termination; (6) whistleblower retaliation; and (7) intentional infliction of emotional distress. The Jury further: (1) found a total of $1,300,000.00 in damages; (2) found clear and convincing evidence that Defendant acted with malice, oppression, or fraud; and (3) awarded $5,000,000.00 in punitive damages.

On July 20, 2023, Plaintiff filed: (1) Motion for an Order for Pre-Judgment Interest; and (2) Motion for an Award of Attorneys’ Fees. With each of these motions, Plaintiff concurrently filed a Proposed Order. In addition, for the Motion for an Award of Attorneys’ Fees, Plaintiff also filed: (1) Request for Judicial Notice; (2) Proposed Order for Request for Judicial Notice; (3) Appendix of Evidence; and (4) Notice of Lodging Federal Authorities.

On July 25, 2023, Plaintiff filed his Judicial Council Form MC-010, Memorandum of Costs (Summary).

On July 25, 2023, the Court entered Judgment in accordance with the Jury’s Verdict.

On August 2, 2023, Defendant filed: (1) Statement of Non-Opposition Re: Plaintiff’s Motion for an Order for Pre-Judgment Interest; and (2) Opposition to Plaintiff’s Motion for an Award of Attorneys’ Fees. In support of its Opposition to Plaintiff’s Motion for an Award of Attorneys’ Fees, Defendant concurrently filed: (1) Request for Judicial Notice; (2) Declaration of Gary Scalabrini; (3) Declaration of Michael W. Kelly; (4) Notice of Lodging Federal Authorities; and (5) Proof of Service.

On August 8, 2023, Plaintiff filed its Replies regarding the Motion for an Order for Pre-Judgment Interest and the Motion for an Award of Attorneys’ Fees.

On August 9, 2023, Defendant filed: (1) Motion for Judgment Notwithstanding the Verdict (“Motion for JNOV”); and (2) Motion for New Trial. With each of the two motions, Defendant concurrently filed: (1) Declaration of Gary E. Scalabrini; (2) Proposed Order; and (3) Proof of Service.

        On August 11, 2023, Defendant filed its Statement of Non-Opposition to Plaintiff’s Memorandum of Costs.

        On August 21, 2023, Plaintiff filed its Oppositions to the Motion for JNOV and the Motion for New Trial. With each of the Oppositions, Plaintiff concurrently filed an Appendix of Evidence.

        On August 29, 2023, Defendant filed its Replies regarding the Motion for JNOV and the Motion for New Trial.

        On August 29, 2023, Plaintiff filed its Objection to Defendant’s Replies regarding the Motion for JNOV and the Motion for New Trial.

        On September 1, 2023, Defendant filed its Reply to Plaintiff’s Objection. Defendant concurrently filed: (1) Request for Judicial Notice; and (2) Proof of Service.

ANALYSIS:

I.          Motion for JNOV

A.      Objection and Request for Judicial Notice

Plaintiff objects to Defendant’s Reply regarding the Motion for JNOV. Defendant argues that this Reply is timely and files a Request for Judicial Notice regarding a trial order in another case.

The Court agrees with Defendant that its Reply is timely. (Reply to Objection, p. 2:6–10.) Even if this Reply were untimely, the Court would still consider it in the interests of justice.

The Court DENIES as irrelevant the Request for Judicial Notice. The Court OVERRULES the Objection.

B.      Legal Standard

“The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc., § 629, subd. (a).)

“The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. The trial judge cannot weigh the evidence, or judge the credibility of witnesses. If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110, citations omitted, scrivener’s error corrected.)

“A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” (Brandenburg v. Pac. Gas & Elec. Co. (1946) 28 Cal.2d 282, 284, citations omitted.)

C.      Discussion

Defendant moves the Court for judgment notwithstanding the Jury’s Verdict on: (1) the cause of action for intentional infliction of emotional distress; and (2) punitive damages. (Motion for JNOV, p. 17:11–12.)

Defendant argues that this would be appropriate because: (1) Plaintiff presented no evidence of extreme and outrageous conduct; (2) Plaintiff presented no evidence of reckless intent to cause extreme emotional distress; (3) as a matter of law, punitive damages may not be awarded here because there was not clear and convincing evidence of malice, oppression, or fraud; and (4) the punitive damages award exceeded the constitutional maximum. (Motion for JNOV, pp. 10:20–21, 12:14–15, 13:3, 15:15.)

Plaintiff opposes the Motion, pointing to various pieces of evidence and arguing that Defendant’s cases are inapposite.

Defendant reiterates its arguments in its Reply, as well as arguing against Plaintiff’s reading of case law.

The Court disagrees with Defendant’s arguments.

First, Plaintiff presented evidence of (1) extreme and outrageous conduct and (2) reckless intent to cause extreme emotional distress. The Jury voted 12-0 in favor of Plaintiff on his cause of action for wrongful termination; 11-1 in favor of Plaintiff on his cause of action for age harassment; and 12-0 in favor of Plaintiff on his causes of action for retaliation. The Jury was also unanimous in finding for Plaintiff on his cause of action for IIED.

There was sufficient evidence presented to uphold each of these verdicts. In addition, Plaintiff’s expert witness, Anthony Reading, testified that, as a result of Defendant’s conduct, Plaintiff suffered an adjustment disorder with anxiety and major depressive disorder.

The Court need not, and will not, recount all of the evidence. It is sufficient for a motion for judgment notwithstanding the verdict that some substantial evidence supports the verdict on these grounds. (Brandenburg, supra, 28 Cal.2d at p. 284.)

Second, there has been no evidence presented to show that the jury failed to consider all of the evidence presented to it by Plaintiff and Defendant. Based upon that evidence, the Jury found clear and convincing evidence of malice, oppression, or fraud. Had this been a Court trial, the Court might have found differently. But the Court cannot weigh the evidence. (Hauter, supra, 14 Cal.3d at p. 110.) It is sufficient to note that substantial evidence supports the verdict on this ground.

Finally, the Jury found $1,300,000.00 in damages and, in the second, bifurcated part of the trial, awarded Plaintiff $5,000,000.00 in punitive damages. The finding of clear and convincing evidence was unanimous. Although the finding of $5,000,000.00 in punitive damages was by a vote of 9-3, the Court has no evidence whether the three dissenting votes would have imposed a higher or lower amount of punitive damages. The punitive damages award is approximately 3.85 times larger than the damages finding. While Defendant correctly notes that there are constitutional limits on punitive damages awards, this punitive damages award does not approach that limit. Further, in the punitive damages portion of the trial, evidence was presented that Defendant had net sales of $1,000,000,000.00; a net worth in 2022 of $172,000,000.00; a net worth in 2023 of $136,000,000.00; and a revolving loan of up to $160,000,000.00. Thus, substantial evidence supports this punitive damages award.

D.      Conclusion

The Motion for JNOV is DENIED.

II.       Motion for New Trial

A.      Objection and Request for Judicial Notice

Plaintiff objects to Defendant’s Reply regarding the Motion for New Trial. Defendant argues that this Reply is timely and files a Request for Judicial Notice regarding a trial order in another case.

The Court agrees with Defendant that the Reply is timely. (Reply to Objection, p. 2:6–10.) Even if this Reply were untimely, the Court would still consider it in the interests of justice.

The Court DENIES as irrelevant the Request for Judicial Notice. The Court OVERRULES the Objection.

B.      Legal Standard

“A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (Code Civ. Proc., § 656.)

“The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

. . .

“5. Excessive or inadequate damages.

“6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

. . .

“When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.

“The order passing upon and determining the motion must be made and entered as provided in Section 660 and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons. . . .”

(Code Civ. Proc., § 657.)

“In ruling on such motion, in a cause tried without a jury, the court may, on such terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the statement of decision and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before a decision had been filed or judgment rendered. Any judgment thereafter entered shall be subject to the provisions of sections 657 and 659.” (Code Civ. Proc., § 662.)

C.      Discussion

Defendant moves the Court to grant a new trial if Plaintiff refuses to consent to a remittitur correcting the punitive damages award. (Motion for New Trial, p. 16:2–4.)

        Defendant argues that this would be appropriate because: (1) the punitive damages award is not supported by clear and convincing evidence; and (2) the punitive damages award is excessive and unconstitutional under federal and state law. (Motion for New Trial, pp. 10:7–8, 12:2–3.)

        Plaintiff disagrees, arguing that the punitive damages award is supported by such evidence and that the award is not excessive or unconstitutional.

        Defendant reiterates its arguments in its Reply.

        The Court disagrees with Defendant’s arguments.

        In order for the Court to grant a new trial upon the grounds of insufficiency of the evidence or excessive damages, the Court must weigh the evidence and be “convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)

        Upon weighing the evidence submitted in this case, the Court is not convinced that the Jury clearly should have reached a different verdict or decision. As seen by the poll of the jury, different Jurors had different opinions on various causes of action, and the Jurors did not consistently vote one way or another. (Minute Order dated June 16, 2023, pp. 4–5.) However, the jury’s verdict, including its award of $5,000,000.00 in punitive damages, was supported by substantial evidence. The Court’s conclusion after reviewing the entire record, including reasonable inferences therefrom, is that the jury’s verdict was sound.

D.      Conclusion

The Motion for New Trial is DENIED.

III.     Motion for an Order for Pre-Judgment Interest

A.      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).)

B.      Discussion

Plaintiff requests that the Court award: (1) pre-judgment interest at the rate of 7% per annum on the economic damages award of $570,938.00 from June 6, 2020 to the date of entry of judgment; and (2) pre-judgment interest at the rate of 10% per annum on the noneconomic damages award of $729,062.00 from December 12, 2022 through satisfaction of the judgment. (Motion for an Order for Pre-Judgment Interest, p. 6:15–21.)

Defendant filed a Statement of Non-Opposition, clarifying Plaintiff’s motion but not substantively opposing it.  (See Statement of Non-Opposition, filed 8/2/2023.)

Plaintiff calculates the first set of interest at $125,262.23 and the second set of interest at $44,942.18, for a total amount of $170,204.41 in pre-judgment interest. (Reply regarding Motion for an Order for Pre-Judgment Interest, p. 2:6–15.)

C.      Conclusion

The Motion for an Order for Pre-Judgment Interest is GRANTED.

Pre-Judgment interest is AWARDED in favor of Plaintiff and against Defendant in the amount of $170,204.41.

IV.      Motion for an Award of Attorneys’ Fees

A.      Request for Judicial Notice

1.      Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of four declarations filed in other cases.

        The Court DENIES Plaintiff’s Request for Judicial Notice. These items are not judicially noticeable.

2.      Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of: (1) a table of case filing information; (2) a printout of Plaintiff’s Counsel’s webpage; (3) a price history report taken from the Wall Street Journal’s website; and (4) a fee request submitted in another case.

The Court DENIES Defendant’s Request for Judicial Notice. These items are not judicially noticeable.

B.      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).)

C.      Discussion

1.      The Parties’ Arguments

Plaintiff moves the Court to award $2,457,612.50 in attorneys’ fees, which would consist of: (1) $1,404,350.00 in lodestar attorneys’ fees; and (2) a multiplier enhancement of 1.75 times the lodestar (which itself would be $1,053,263.50). (Motion for an Award of Attorneys’ Fees, pp. 11:13–14, 13:19.)

Plaintiff argues: (1) that as the prevailing party, Plaintiff is entitled to attorneys’ fees under the Fair Employment and Housing Act (“FEHA”); (2) that the size of the verdict should not lessen the fee award; (3) that Plaintiff’s requested attorneys’ fees are reasonable; and (4) that a multiplier of 1.75 times the lodestar is necessary given the contingent risk, preclusion of other work, difficulty of questions involved, and level of skill displayed in this litigation. (Motion for an Award of Attorneys’ Fees, pp. 5:14, 6:1, 6:24, 11:15–16.)

 Defendant disagrees, arguing: (1) that an award of attorneys’ fees is not mandatory; (2) that Plaintiff’s Counsel must meet its burden to demonstrate the fees requested are reasonable; (3) that Plaintiff’s lodestar is substantially based on 166 “trial preparation” entries that cumulatively account for 1,030.5 attorney hours; (4) that if the Court decides to award fees, the lodestar should be reduced significantly; and (5) that the circumstances of this case do not justify a multiplier. (Opposition to Motion for an Award of Attorneys’ Fees, pp. 5:12–13, 6:12–13, 8:23–24, 11:4.) Defendant argues in the alternative that the Court should award $819,888.24 in attorneys’ fees, which would consist of: (1) $803,812.00 in lodestar attorneys’ fees; and (2) a multiplier enhancement of 1.02 times the lodestar (which itself would be $16,076.24). (Id. at p. 16:23–24.)

        In his Reply, Plaintiff argues: (1) that fee awards under FEHA should ordinarily be granted as a matter of legislative purpose; (2) that Defendant’s misrepresentation of authority underscores the need for a fee award; (3) that Defendant makes misrepresentations and omissions from other fee awards; (4) that Plaintiff’s entries are sufficient under the law; (5) that Defendant does not contest Plaintiff’s requested hourly rates; and (6) that Defendant cannot overcome the compelling interests in awarding a multiplier. (Reply regarding Motion for an Award of Attorneys’ Fees, pp. 2:8–9, 2:22, 4:10, 7:3, 8:9, 8:17.)

2.      The Prevailing Party

a.       Legal Standard

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.)

b.       Discussion

Plaintiff is indisputably the prevailing party here. The Jury found in favor of Plaintiff on all causes of action tried; found clear and convincing evidence that Defendant acted with malice, oppression, or fraud; and awarded punitive damages in favor of Plaintiff and against Defendant. There are no circumstances here that would render a fee award unjust.

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

3.      The Method for Calculating Recovery

a.       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.)

b.       Discussion

Although Defendant argues that no fees should be awarded, neither Party disputes that the appropriate approach for calculating recovery of attorneys’ fees is the lodestar adjustment method, which involves multiplying the number of hours reasonably expended by the reasonably hourly rate. (Caldera, supra, 48 Cal.App.5th at p. 604.) Nor do the Parties dispute that consideration of a multiplier is appropriate, although Defendant argues that a multiplier is ultimately not appropriate here.

The Court uses the lodestar adjustment method here and considers whether a multiplier is appropriate. 

4.      Reasonableness of the Fees

a.       Legal Standard

“[T]he reasonable value of attorney services is variously defined as the hourly amount to which attorneys of like skill in the area would typically be entitled.” (Ketchum, supra, 24 Cal.4th at p. 1133, citation and internal quotation marks omitted.)

“[A]bsent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Ketchum, supra, at p. 1133, citation and emphases omitted.)

“The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. However, 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 do not suffice.” (Vines v. O’Reilly Auto Enters., LLC (2022) 74 Cal.App.5th 174, 184 [cleaned up].)

b.       Discussion

i.        The Hourly Rates

Plaintiff claims: (1) that Counsel Carney Shegerian charges $1,350.00 per hour; (2) that Counsel Anthony Nguyen charges $1,100.00 per hour; (3) that Counsel Mahru Madjidi charges $900.00 per hour; (4) that Counsel Bryan Kirsh charges $825.00 per hour; (5) that Counsel Iris Salem charges $600.00 per hour; (6) that Counsel Allison Norder charges $550.00 per hour; (7) that Counsel Kierston Yamamoto charges $450.00 per hour; (8) that Counsel Zalman Robles charges $450.00 per hour; and (9) that Counsel Thomas Rouston charges $450.00 per hour. (Motion for an Award of Attorneys’ Fees, p. 11:7–13.

Most, but not all, of the attorneys that comprise Plaintiff’s Counsel provided declarations that help explain the hourly rates they charge. (Appendix of Evidence: Decl. Shegerian, ¶ 7; Decl. Nguyen, ¶ 10; Decl. Madjidi, ¶ 11; Decl. Kirsh, ¶ 4; Decl. Norder, ¶ 4; Decl. Yamamoto, ¶ 4.)

Counsel Shegerian has over 30 years of experience practicing law and is considered, both by this Court and the legal community, to be an exceptional trial attorney. Counsel Nguyen has nearly 15 years of experience practicing law and has previously appeared before this Court.  Counsel Madjidi has 10 years of experience practicing law. Counsel Kirsh has been an attorney for six years. Counsel Norder (who has been an attorney for less than two years) and Counsel Yamamoto (who has been an attorney for less than one year) are still entry-level attorneys. The Court does not have any information for Counsel Salem, Robles, or Rouston — even though Counsel Salem apparently charges more than Counsel Norder and Yamamoto.

This Court has previously granted Attorney Shegerian fees of $1,300/hour.  Understanding that top defense counsel who are partners at major law firms charge up to $1,600/hour, the Court finds Shegerian’s requested rate of $1,350/hour to be reasonable.  Based upon an evaluation of the declarations submitted, the Court’s understanding of the prevailing rate for attorneys of comparable skill and experience in the relevant community, and the Court’s personal knowledge of the attorneys’ skills as presented in Court, the Court lowers the hourly rates allowed to reasonable rates, as shown in the chart below.

ii.          The Number of Hours

Plaintiff’s Counsel Anthony Nguyen declares that 1,755.5 hours of attorney time are sought in connection with this case. (Reply regarding Motion for an Award of Attorneys’ Fees, Decl. Nguyen, ¶ 14.)

Defendant specifically argues that the 1,030.5 hours spent on “trial preparation” were excessive. (Opposition to Motion for Award of Attorneys’ Fees, p. 6:12–13.) Defendant proposes that only 450 hours be allowed for trial preparation. (Id. at p. 9:11–14.) Defendant does not make other arguments that specifically point to issues with the hours sought by Plaintiff’s Counsel.

        The Court agrees with Defendant that 1,030.5 hours spent on trial preparation is excessive, but only marginally so. This was a difficult, fact-intensive case. There was no guarantee that Plaintiff would be successful in his claims, and Plaintiff’s Counsel did an excellent job trying this case. The fact that Defense Counsel only spent 376.2 hours on trial preparation in the three months leading up to trial may have contributed to the jury’s verdict.

The Court will lessen the hours of Counsel Madjidi, Nguyen, and Norder by 75 hours, 50 hours, and 25 hours, respectively, in rough accordance with their proportionate hours spent on trial preparation. (Opposition to Motion for Award of Attorneys’ Fees, p. 6:13–22.)

        The Court will grant the other hours sought, as Plaintiff has met his initial burden of proof on those hours and Defendant has not met its subsequent burden to show that those hours should be reduced.

5.      Multiplier to the Lodestar

a.       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. 1132–34.)

“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.)

b.       Discussion

Plaintiff requests a multiplier enhancement of 1.75. (Motion for Award of Attorneys’ Fees, p. 11:15–16.)

Defendant argues that there should be no multiplier, or in the alternative only a multiplier or 1.02. (Opposition to Motion for Award of Attorneys’ Fees, pp. 11:4–5, 16:19–20.)

For the reasons listed below, the Court finds that Plaintiff meets his burden regarding a multiplier enhancement.

First, Plaintiff’s Counsel took this case on complete contingency. (Reply regarding Motion for Award of Attorneys’ Fees, Decl. Nguyen, ¶ 16.) “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, 1217–18 and Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1252.) 

FEHA cases are based on statutes that are designed to protect the California consumer. If a plaintiff’s attorney is paid no more than the lodestar, “competent counsel will be reluctant to accept fee award cases.” (Ketchum, supra, 24 Cal.4th at p. 1133, quotation and internal quotation marks omitted.)¿ 

Second, the vast amount of hours reasonably incurred on this matter clearly precluded other work by Plaintiff’s Counsel.

Third, discussed earlier in this Order, three members of Plaintiff’s Counsel are very experienced, two of whom spent a significant amount of time on this case. Although the most experienced lawyer on the team (Counsel Shegerian) only spent 4.4 hours on this matter, Counsel Nguyen and Madjidi (who each spent hundreds of hours on this matter) are highly-skilled trial attorneys.

Fourth, there was a significant chance that Defendant would have prevailed on each of the causes of action. This was apparent from the motion for summary judgment filed in this matter, in which the Court granted summary judgment against Plaintiff on two causes of action (breach of express oral contract and breach of implied contract).

Fifth, Plaintiff’s Counsel achieved excellent results for their client. Plaintiff succeeded on all causes of action tried, obtained $1,300,000.00 in damages, and obtained $5,000,000.00 in punitive damages. The Court has no problem concluding that these results are significantly higher than they would have been without counsel of comparable skill and experience.

Sixth, in contrast to Defense Counsel, who presumably gets paid monthly, Plaintiff’s Counsel have not been paid for the more than two years that this action has been pending.  The normal interest rate in California is 10%, which is the equivalent of a 1.10 multiplier. Because not all of an attorney’s work occurs at the beginning of any given year, 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 Plaintiff’s Counsel for the time-value of the money that they would have been paid monthly had the case not been contingent.¿ 

Plaintiff’s Counsel litigated this case from May 2021 through September 2023 without payment. However, at oral argument, it was indicated Plaintiff’s counsel’s work was not evenly distributed over the past 2½ years; rather, most of it was performed during the past year. In consideration of this delay and that the statutes under which Plaintiff sued were designed to protect workers, the Court would award a 1.075 multiplier to the lodestar indicated above just to compensate for the time value of money. This multiplier would compensate Plaintiff’s Counsel for the time value of the money they would have been paid monthly had the case not been contingent.  

        Finally, FEHA cases are unfortunately necessary for upholding the public interest. Race and age discrimination occur far too often in our society; often such discrimination is not remedied. Our courts have long recognized the “need to encourage [attorneys] willing to challenge injustices in our society” and that “[a]dequate fee awards are perhaps the most effective means of achieving this salutary goal.” (Etcheson v. FCA US LLC, (2018) 30 Cal.App.5th 831, 849, quoting Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 839.)  For that reasons, Courts should not be “unduly parsimonious in the calculation of such fees.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 839.)

The Court will award a multiplier enhancement of 1.575, which this Court finds appropriate given the factors considered above.

D.      Conclusion

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

Attorneys’ fees are granted in the total amount of $1,649,261.25. This comprises of a lodestar of $1,047,150.00 and a multiplier of 1.575, as shown in the spreadsheet below.