Judge: Monica Bachner, Case: 20STCV44241, Date: 2023-03-06 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV44241    Hearing Date: March 6, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Kittrich Corporation’s, Gabriela Vilchiz’s, and Gustavo Reyes’ motion to tax costs is granted in the reduced amount of $9,492.38.  Plaintiff Maria Collazo is entitled to costs in the amount of $8,589.31.

Plaintiff’s motion for attorneys’ fees is granted in the reduced amount of $10,000.00.

           Defendants Kittrich Corporation (“Kittrich’), Gabriela Vilchiz (“Vilchiz”), and Gustavo Reyes (“Reyes”) (collectively, “Defendants”) move to tax costs sought by Plaintiff Maria Collazo (“Collazo”) (“Plaintiff”) and not award Plaintiff costs incurred after Defendants served Plaintiff a C.C.P. §998 offer to compromise on May 9, 2022, and Plaintiff failed to obtain a more favorable result at trial.  (Notice of Motion, pg. 1; CRC, Rule 3.1700(b).)  Defendants further move to tax costs on the basis they are not authorized by statute and were unnecessary, excessive, or unrecoverable.  (Notice of Motion Tax Costs, pg. 1.)

           Plaintiff moves for an award of attorneys’ fees in the amount of $22,445.00 as the prevailing party in her cause of action seeking civil penalties against Defendant Kittrich.  (Notice of Motion Attorneys Fees, pg. 1; Lab. Code §§226, 1198.5.)

           Background

Plaintiff filed the instant action on December 28, 2020, alleging claims for (1) disability discrimination, (2) harassment, (3) retaliation, (4) failure to prevent harassment and retaliation, (5) failure to provide reasonable accommodations, (6) failure to engage in good faith interactive process, (7) wrongful termination in violation of public policy, (8) declaratory judgment, and (9) failure to permit inspection of personnel and payroll records.  On May 9, 2022, Defendants served on Plaintiff a C.C.P. §998 offer to compromise for $40,000, to which Plaintiff did not respond.  (Decl. of Wright ¶3, Exh. A.)  On May 24, 2022, this Court conducted a jury trial.  On June 3, 2022, this Court conducted a bench trial.  On June 3, 2022, the jury rendered a special verdict, finding in favor of Defendants on the first eight causes of action. With regards to the bench trial, this Court found in favor of Plaintiff on Plaintiff’s ninth cause of action for $750.00 in penalties under Labor Code §226 and §1198.5 each.  On July 22, 2022, this Court entered the judgment on the special verdict.

           On August 26, 2022, Defendants filed their motion to tax costs.  On February 16, 2023, Plaintiff filed her opposition.  On February 23, 2023, Defendants filed their reply.

           On September 20, 2022, Plaintiff filed her motion for attorneys’ fees.  On February 21, 2023, Defendants filed their opposition.  As of the date of this hearing, Plaintiff has not filed a reply.

1.    Defendants’ Motion to Tax Costs

“‘If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.’”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.  [Citation] However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations]” (Id.)

“The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation]” (Id.)

“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.  (C.C.P. §1032(a)(4).)  Plaintiff is the prevailing party in the instant case because she is the party with a net monetary relief.

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, except as otherwise expressly provided by statute. (C.C.P.  §1032(b).)  California law recognizes three types of litigation costs: allowable, not allowable, and discretionary.  (C.C.P. §1033.5(a), (b), (c)(4).)  Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §1033.5(b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation.  (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774.)  For allowable costs, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(C.C.P. §1033.5(c)(2)-(3).) 

To the extent Defendants challenge costs, they must be challenged as costs that were not, “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” or not “reasonable in amount.”  (C.C.P. §1033.5(c)(2)-(3).)

All Costs Incurred After the May 9, 2022, §998 Offer

C.C.P. §998(c)(1) provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.”  (C.C.P. §998(c)(1).)  “In determining whether the plaintiff obtains a more favorable judgment, the court . . . shall exclude the post offer costs.”  (C.C.P. §998(c)(2)(A).)  “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.”  (C.C.P. §998(e).)

On May 9, 2022, Defendants served on Plaintiff a C.C.P. §998 offer to compromise for $40,000, to which Plaintiff did not respond.  (Decl. of Wright ¶3, Exh. A.)  Plaintiff did not respond to Defendants’ C.C.P. §998 offer.  (Decl. of Wright ¶3.)  Plaintiff failed to obtain a more favorable verdict/judgment at trial, and therefore cannot recover costs incurred after the time of the C.C.P. §998 offer.  (C.C.P. §998(e).)

Defendants argues Plaintiff cannot recover filing and motion fees incurred after May 9, 2022, (Item No. 1, Attachment 1g) in the amount of $21.78, interpreter fees (Item No. 13) in the amount of $1,400.00, court reporter fees (Item No. 11, Attachment 12c) in the amount of $6,520.60, and May 19, 2022, mediation costs (Item No. 16, Attachment 16a) in the amount of $2,950.00.  Defendants met their burden to demonstrate the relevant filing and motion fees (Item No. 1, $21.78), court reporter fees (Item No. 11, Attachment 12c, $6,520.60), and mediation costs (Item No. 16, Attachment 16a, $2,950) occurred after May 9, 2022.  However, Defendants have not met their burden to demonstrate interpreter’s fees (Item No. 13) occurred after May 9, 2022.

Accordingly, these costs in the total amount of $9,492.38 are stricken from Plaintiff’s memorandum of costs.

Item No. 2 (Jury Fees)

C.C.P. §1033.5(a)(1) provides that filing, motion, and jury fees are allowable as costs.

Defendant moves to tax Item No. 2 in the amount of $150.00.  Defendants argue Plaintiff was not the prevailing party for any of the causes of action the jury decided in this matter, and Plaintiff was only the prevailing party on the cause of action decided by a bench trial.  Defendants’ argument is unsupported and contradicts the C.C.P. §1032(a)(4) definition of the “prevailing party,” which is the party with a net monetary recovery.  Plaintiff is the prevailing party despite not recovering on her FEHA-related claims because she still prevailed on her Labor Code §226 and §1198.5 claims and received a net monetary recovery.

Based on the foregoing, Defendants’ motion to tax Item No. 2 is denied.

Item No. 4 (Deposition Costs)

Defendants move to tax Item No. 4 in the amount of $854.80.  Defendants argue that some deposition costs are recoverable under C.C.P. §1033.5(a)(3), but Plaintiff’s memorandum of costs does not provide Defendants or this Court with sufficient information to determine which of Plaintiff’s claims deposition costs are allowable.  Plaintiff’s memorandum of costs provided that deposition costs were related to taking the deposition of PMK Celina Hernandez.  (Memorandum of Costs, pg. 2.)  Plaintiff only listed costs for taking the deposition and did not include costs for transcribing, travel, or videotaping.  Accordingly, Defendants did not meet their burden to demonstrate Plaintiff’s costs for taking a deposition are not “reasonably necessary to the conduct of the litigation” or not “reasonable in amount”; such costs are allowable under C.C.P. §1033.5(a)(3)(A).

           Based on the foregoing, Defendants’ motion to tax Item No. 4 is denied. 

           Conclusion

           Based on the foregoing, Defendants’ motion to tax costs is granted in the reduced total amount of $9,492.38.  Accordingly, Plaintiff is entitled to costs in the amount of $8,589.31.

2.    Plaintiff’s Motion for Attorneys’ Fees

Labor Code §226(h) provides that a current or former employee “may recover costs and reasonable attorney’s fees in such an action.”  (Lab. Code §226(h).)  

Labor Code §1198.5(l) provides that a current or former employee “may recover costs and reasonable attorney’s fees in such an action.”  (Lab. Code §1198.5(l).)

Under California law, courts are required to calculate an award of attorneys’ fees such that it provides full compensation for all the time reasonably expended in the litigation.  (Serrano v. Unruh (1982) 32 Cal.3d 621, 632-634, 639.)  California courts have adopted the “lodestar” formula for fee awards under fee shifting statutes, such as the Labor Code.  (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1216.)  In making this calculation, the reasonable hourly rate is the “prevailing rate for private attorneys in the community” handling litigation of the same type.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.)  This, in turn, requires consideration of two primary factors: (1) the experience and expertise of Plaintiff’s counsel; and (2) prevailing hourly rates for attorneys of comparable experience and expertise in this legal community.  (Serrano, 32 Cal.3d at pgs. 640-643 n.31.)  The court may then adjust that result by using a multiplier to enhance the total fee to be paid to reflect circumstances specific to the case, such as the novelty of the questions involved, the skill displayed by the attorneys, and the contingent nature of the fee award.  (Ketchum, 24 Cal.4th at pg. 1132; PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) 

Reasonable Fees

Plaintiff’s counsel declares (1) Kaveh S. Elihu’s hourly rate is $850, (2) Victor R. Ujkic’s hourly rate is $500; (3) Jose L. Valdez’s hourly rate is $450; (4) Sylvia Panosian’s hourly rate is $650; (5) Nayri Jilizian’s hourly rate was $550; (6) Rhett T. Francisco’s hourly rate is $1,000; (7) Samuel Moorhead’s hourly rate is $550; (8) Daniel Friedman’s hourly rate is $700; (9) paralegal Rene Collazo’s hourly rate is $275; and (10) paralegal Daniel Lopez’s hourly rate is $275.  (Decl. of Elihu ¶¶18, 20, 21, Exh. 1; Decl. of Ujkic ¶5; Decl. of Valdez ¶9; Decl. of Panosian ¶6; Decl. of Lopez ¶10.)  Plaintiff failed to file the declarations of Daniel J. Friedman, Rhett T. Francisco, and Samuel J. Moorhead in support of their rates as reasonable in their community of practice and based on their experience and expertise. Additionally, Kaveh Elihu’s hourly rate listed in Plaintiff’s motion does not correspond with the evidence submitted in his declaration.  Plaintiff has sufficiently demonstrated Counsel Elihu’s, Ujkic’s, Valdez’s, and Panosian’s hourly rates are reasonable in their community of practice, but failed to demonstrate Counsel Friedman’s, Francisco’s, and Moorhead’s hourly rates are reasonable.  As the vast bulk of the billing was by Francisco, and no evidence is provided regarding his experience, the Court is reducing his hourly billing rate to $550.

           Defendants object to Plaintiff’s counsel’s fees for non-compensable work in recovery of 8 hours of clerical/secretarial work and law office overhead incurred, including work by Stephanie Nunez, a “legal assistant” whose qualifications and expertise are not disclosed in Plaintiff’s motion or attached declarations.  (Opposition, pg. 3.)  Legal Assistant Stephanie Nunez billed 2.7 hours for tasks including drafting records requests, finalizing and serving records requests, and drafting the complaint for damages at a rate of $125, and Legal Assistant Ruben Cervantes billed 1.5 hours for translation assistance for Plaintiff’s deposition prep at a rate of $125.  (Decl. of Valdez, Exh. 1.)  These hours appear reasonable, as they are reduced rates that are not at the rates billed by attorneys or paralegals.  (See Decl. of Valdez, Exh. 1.)

           Defendants also object to Plaintiff’s counsels’ attorneys’ fees on the basis that the requested amount includes entries by “transient billers” who only appear in the billing records for a few entries or for a brief period and do not appear to have a significant or substantive role in this matter.  (See In re Thrifty Oil Co. (S.D.Cal. 1997) 205 B.R. 1009, 1022.)  Defendants’ cases, including In re Thrifty Oil Co., are not binding on this Court and do not reflect the case law regarding reasonable fees in California’s state court system.

           Defendants object to Plaintiff’s counsels’ attorney’s fees on the basis that counsel’s billing entries are not sufficiently detailed because they contain vague descriptions such as “case strategy discussion,” “review depo notes,” and “discussion of trial documents,” which make it difficult to assess the reasonableness of the fees requested.  (Opposition, pg. 4.)  Plaintiff’s counsels’ attorneys’ billing entries are sufficiently detailed.

           Finally, Defendants argue that Plaintiff is not entitled to fees post-998 offer.  They are correct.  “The language of section 998 ‘on its face’ prevents a plaintiff who rejects a settlement offer that is greater than the recovery it ultimately obtains at trial from recovering ‘postoffer’ costs and attorney fees.” (Duale v. Mercedes-Benz USA, LLC  (2007) 148 Cal App 4^th 718, 726.)  Accordingly,

The Court will be reducing the fees to take into account only work performed prior to the 998 offer.

           Final Lodestar Determination

Plaintiff does not seek a multiplier in this case, and instead seeks the total fees awarded divided by nine, the number of causes of action Plaintiff alleged in her complaint.  (Motion, pg. 4.)  A downward multiplier is a more appropriate means of calculating Plaintiff’s attorneys’ fees in this case, considering the limited success of Plaintiff’s claims.  (See Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834 [duplication of work required a negative multiplier].)

Accordingly, Plaintiff’s attorneys’ fees are awarded in the reduced amount of $10,000.00  

Dated: March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court