Judge: Michael Shultz, Case: 21STCV45537, Date: 2025-01-22 Tentative Ruling

DEPARTMENT 40 - MICHAEL J. SHULTZ  - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV45537    Hearing Date: January 22, 2025    Dept: 40

21STCV45537 Grace Rodriguez, et al. v. Paramount Convalescent Group, Inc., dba Paramount Convalescent Hospital

Wednesday, January 22, 2025

[TENTATIVE] ORDER GRANTING PLAINTIFFS’ MOTION FOR DETERMINATION OF COSTS AND ATTORNEY’S FEES REGARDING PLAINTIFFS’ MOTION FOR SANCTIONS AND ENTRY OF ORDER

I.       BACKGROUND

      The first amended complaint filed January 8, 2024, alleges that Plaintiff, Grace Rodriguez, is a sister and heir of Evangeline Rodriguez (“Decedent”), who was a resident of Defendant’s skilled nursing facility. Plaintiffs allege that Defendant failed to establish mandated safety protocols due to the COVID-19 pandemic. As a result, Decedent died on December 17, 2020, after contracting the virus. Plaintiffs alleged claims for elder abuse, violation of residents’ rights, negligence, and wrongful death.

      A jury trial commenced on March 13, 2024. The court declared a mistrial on March 18, 2024, at Plaintiffs’ oral request. On May 3, 2024, the court determined that Plaintiffs were entitled to an award of attorney’s fees and costs pursuant Code Civ. Proc., § 128.5  as a result of defense counsel’s frivolous and bad faith conduct but deferred determination of the amount of those sanctions until the conclusion of the matter. (M.O. 5/3/24.)

      On June 10, 2024, the court entered judgment on special verdict in favor of Defendant with the amount of costs to be determined. The court updated the judgment on September 3, 2024, and awarded Defendant costs of $120,653.38.

      The court previously heard Plaintiffs’ motion on August 13, 2024, but continued the hearing to allow Plaintiff to submit a supplemental declaration and evidence in support of the amount of sanctions to be awarded under Code Civ. Proc., § 128.5.

II.     ARGUMENTS

      Plaintiffs request an award of sanctions totaling $68,450, for 123 hours spent as a result of Defendant’s conduct. Plaintiffs contend that the request is warranted given the highly specialized nature of the claims for elder abuse.

      In opposition, Defendant argues that the supplemental declaration was untimely filed on January 15, 2025, when it was due 10 days prior to this hearing. The supplemental declaration does not clarify whether the costs and fees were reasonably incurred. The new table provided by Plaintiffs is not generated by a billing program. Plaintiffs have not demonstrated that $750 per hour and $350 per hour incurred by counsel are the prevailing market rates.

      Plaintiffs did not file a reply brief by January 14, 2025, five court days before the hearing. (Code Civ. Proc., § 1005 subd. (b).)

III.    PROCEDURAL FACTS

      The court previously determined that Plaintiffs met their burden of showing that Defendant engaged in “frivolous actions or tactics” entitling Plaintiffs to fees and costs incurred as a result of such conduct. (Code Civ. Proc., § 128.5 subd. (a); (M.O. 5/3/24.) The court previously heard Plaintiffs’ motion for determination of fees and costs on August 13, 2024, but continued the hearing as Plaintiffs did not provide sufficient facts from which the court could exercise its discretion to determine whether reasonable fees and costs claimed by Plaintiffs could be attributed to Defendant’s bad faith actions or tactics. Therefore, the court ordered Plaintiffs' counsel to provide additional evidence, including billing records and a supplemental declaration to be filed 10 court days before the hearing. Plaintiffs subsequently moved to continue this hearing, which the court granted based on the parties’ stipulation. (M.O. 10/8/24.)  

IV.   LEGAL STANDARDS

      To determine whether fees are reasonable, the court begins with the lodestar, which is the number of hours reasonably spent multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court considers a number of factors including "the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’” (PLCM Group at 1096.) The lodestar figure can be adjusted based on the factors specific to the case. (Id.)

      To determine a reasonable market rate, "the courts will look to equally difficult or complex types of litigation.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700.) The “market rate” is generally based on the rates prevalent in the community where the court is located. (Id.)

      The court may rely on his or her own experience and is given broad discretion in calculating reasonable attorney’s fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 ["The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”].)       

V.     DISCUSSION

      The court has considered Plaintiffs’ untimely supplemental declaration in favor of the strong policy favoring disposition of the case on the merits. (Kapitanski v. Von’s (1983) 146 Cal.App.3d 29, 32). [“Judges are well aware of the unnecessary burdens placed on courts and counsel when strict compliance with local procedural rules results in the expenditure of unnecessary time and money for the preparation of later section 473 motions.”]. Defendant has not shown any prejudice resulting from the delay. Defendant was able to file an opposition to the supplemental declaration, which the court has considered.

      Plaintiffs’ counsel, Dawn M. Smith, requests an hourly rate of $750 per hour based on 23 years of experience, primarily litigating elder abuse cases and $350 per hour for work performed by Janine Mitchell, an associate. Both counsel worked on a contingency fee basis. (Smith decl. ¶¶ 11-13.) The court finds that the rate requested by both counsel is reasonable in light of the specialized nature of the litigation.

      The motion for determination filed on July 17, 2024, requested $68,450.00 in fees and $13,086.13 in costs. (Mot.  5:4.) Plaintiffs’ request for costs is supported by a ledger for travel and hotel room expenses incurred by counsel and their witnesses until the mistrial. (Mot.  Ex. ii.)

      Plaintiffs request fees performed for all hours expended to prepare for the trial. Plaintiffs are entitled to reasonable expenses resulting from the bad faith conduct. Here, the two attorneys representing Plaintiffs were required to duplicate the efforts expended for trial preparation generally, jury selection, opening statements, reviewing records, preparing for and examining the first witness, and both counsel’s attendance at trial, all of which were required to be duplicated upon retrial.

      The court has reviewed the Smith declaration and exhibit thereto. The time spent by one managing partner and one associate attorney appears reasonable.           

      Defendant takes issue with the table submitted as evidence of fees incurred as it does not appear to be a billing record. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1324 ["It is not necessary to provide detailed billing timesheets to support an award of attorney fees under the lodestar method.”]. An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)

VI.   CONCLUSION

      Sanctions pursuant to Code Civ. Proc., § 128.5 may be imposed on a party, the party’s attorney, or both. (Code Civ. Proc., § 128.5. subd. (a). Absent exceptional circumstances, “a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees." (Code Civ. Proc., § 128.5 subd. (f)(a)(C).)

      Based on the foregoing, the court GRANTS Plaintiffs’ motion and awards sanctions under Code Civ. Proc., § 128.5 in favor of Plaintiffs and against Defendant, Paramount Convalescent Group, Inc., dba Paramount Convalescent Hospital, and its counsel Martin R. Boags, jointly  and severally, consisting of $68,450 in attorney’s fees and $13,086.13 in costs, payable to Plaintiffs within thirty [30] days.