Judge: Randolph M. Hammock, Case: 21STCV12544, Date: 2024-09-12 Tentative Ruling
Case Number: 21STCV12544 Hearing Date: September 12, 2024 Dept: 49
Eblin Guerra v. Vicente Serrano Painting Inc., et al.
MOTION FOR ATTORNEYS’ FEES AND COSTS
MOVING PARTY: Plaintiff Eblin Guerra
RESPONDING PARTY(S): Defendant Vicente Serrano
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS
Plaintiff Eblin Guerra brought this action against Defendants Vicente Serrano and Vicente Serrano Painting, Inc., asserting causes of action under the FEHA and Labor Code, among others.
The matter proceeded to a bench trial on January 17, 2024 and January 18, 2024. The court found that Plaintiff prevailed on his causes of action for failure to pay wages (7th COA), failure to pay minimum wages (8th COA), Failure to pay overtime (9th COA), failure to provide meal periods (10th COA), and waiting time penalties (13th COA.) Thereafter, this court entered judgment in Plaintiff’s favor against Defendant Vicente Serrano individually in the total amount of $129,525.00. The court also entered a judgment by default against Defendant Vicente Serrano Painting in the total amount of $105,500.00.
Plaintiff now moves for an award of attorney’s fees. Defendant opposed.
TENTATIVE RULING:
Plaintiff’s Motion for Attorney’s Fees is GRANTED IN PART in the total amount of $48,750.00.
Plaintiff is also awarded costs in the amount of $7,793.69
Plaintiff may file and serve a [Proposed] Amended Judgment consistent with this ruling.
Moving party to give notice, unless waived.
DISCUSSION:
Motion for Attorney’s Fees and Costs
A. Background
Plaintiff filed this Complaint on April 1, 2021 alleging fifteen (15) causes of action, including: (1) Discrimination in Violation of Government Code § 12940(a); (2) Harassment in Violation of Government Code § 12940; (3) Retaliation in Violation of Government Code § 12940(h); (4) Failure to Prevent Discrimination, Harassment and Retaliation Violation of Government Code § 12940(k); (5) Declaratory Judgment; (6)Wrongful Termination In Violation of Public Policy; (7) failure to pay wages, (8) failure to pay minimum wages, (9) Failure to pay overtime, (10) failure to provide meal periods (11) failure to provide itemized wage statements; (12) Failure to Indemnify; and (13) waiting time penalties.
A bench trial was held on January 17, 2024 and January 18, 2024. The trial lasted less than eight (8) hours. On February 15, 2024, this court issued its Informal Statement of Decision. This court found that Plaintiff prevailed on the each of the Seventh through Tenth causes of action against Defendant Vicente Serrano individually. (See 02/15/24 Informal Statement of Decision, p. 4-5.) The court found that the total monetary amount of wage and hour violations, including any applicable penalties and interest, was $123,450. (Id.) Plaintiff also prevailed on the Thirteenth Cause of action for waiting time penalties, for an award of $6,075. (Id. p. 6.) Thus, the court entered judgment in Plaintiff’s favor in the total amount of $129,525.00. (Id.) The court also awarded a default judgment against Defendant Vicente Serrano Painting for the total amount of $l05,550. (Id. p. 8.)
As the prevailing party at trial, Plaintiff now seeks attorney’s fees in the amount of $122,342.55, plus a 1.5 multiplier, for a total fee award of $183,513.83.
B. Determination of Reasonable Attorney’s Fees
In California, “[a] party may not recover attorney fees unless expressly authorized by statute or contract.” (Hom v. Petrou (2021) 67 Cal. App. 5th 459, 464; See Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10).)
Under Labor Code section 218.5(a), “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action…” Additionally, under Labor Code section 1194(a), “[n]otwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” [FN 1]
Here, because Plaintiff prevailed on some causes of action and obtained a net monetary recovery, there can be no real dispute that Plaintiff was the prevailing party at trial. Plaintiff is therefore entitled to recover his reasonable attorney’s fees and costs.
1. Reasonable Hourly Rate
The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)
By the court’s calculation, Plaintiff utilized over 20 different professionals on this matter, including nearly a dozen different attorneys. (See Elihu Decl. ¶ 18, Exh. 1.) Their hourly rates ranged from $350.00 to $1,000.00 per hour. (Id.) It appears that the bulk of the hours were completed by attorneys billing at the higher end of that range. (Id.) Plaintiff contends these rates “are fully commensurate with, if not below, the prevailing market rates in Southern California.” (Mnt. 8: 21-22.)
This court has read and considered Plaintiff’s motion and accompanying declarations, including those submitted by each respective professional setting forth their rates and experience. (See, e.g, Declarations of Moorhead, Reeves, Gonzalez-Pacheco, Rojas, Elihu, Friedman, Berkowitz, and Panosian.)
Here, this court will award a “blended” rate for all services in this case at $650.00 per hour. This is a reasonable rate based on the complexity of the case, the quality of services provided, and the attorneys’ experience. See, e.g., Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.4th 240, 246 [“blended” attorney fee rates are allowable under the sound discretion of the trial court].
2. Number of Hours Reasonably Expended
“[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)
The billing records are attached to the Declaration of Kaveh Elihu as Exhibit 1. (See Elihu Decl. ¶ 18, Exh. 1.) In total, the records reflect over 200 hours on the case. (Id.)
Defendant objects to the time spent, and points to particular records that it deems excessive. This court agrees that the quoted time is somewhat high under the circumstances, especially for a case that culminated in a trial completed in less than eight hours.
This might be due, at least in part, to the various professionals who worked on the matter. “[I]t is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.)
As also noted by Defendant, the records reflect that attorney Steven Berkowitz billed an eyepopping 22.9 hours on the day of January 16, 2024 alone. (See Elihu Decl. ¶ 18, Exh. 1.) Though not impossible to do so, such a claim does warrant that the court review the records and consider the time spent with an increased level of scrutiny.
Plaintiff’s counsel routinely litigates these cases and touts its experience doing so. By and large, the issues involved in this case were applicable to other employment or wage and hour actions, thereby triggering economies of scale in terms of Plaintiff’s counsel’s efficiency in litigating this type of case. Litigating this case “should not have been such a monumental undertaking.” (Maughan v. Google Tech., Inc. (2006) 143 Cal. App. 4th 1242, 1251.) Whether Plaintiff’s counsel actually spent the quoted time is beside the point—even accepting that they did, it was unreasonable to do so in this case.
Thus, using a lodestar approach, and in view of the totality of the circumstances discussed above, this Court awards Plaintiff its base reasonable attorney’s fees in the total amount of $97,500, calculated by multiplying $650 per hour x 150 hours.
As to Plaintiff’s bold and ill-conceived request for an “enhancement multiplier” of 1.5, that request is DENIED. Although this court appreciates the contingent nature of the case, the court declines to apply a multiplier as there were few, if any, complex or novel issues of law.
In fact, the Defendant’s express request for a “negative multiplier” is well placed. The vast majority of Plaintiff’s claims were, in fact, specious, and not supported by any evidence whatsoever. Plaintiff failed to prove any of his discrimination, retaliation, and wrongful termination claims. Defendant is corrected in noting that Plaintiff “failed to prevail on a total of eleven of the fifteen causes of action he asserted and took to trial . . .” (Opposition, 4: 2-14)
Indeed, Plaintiff merely prevailed on some of his wage and hour claims, which frankly, was simply shooting fish in a barrel, given the fact that Defendant failed to keep adequate records. In short, this case was over-pled and over-litigated. A negative multiplier is clearly warranted in this case.
Based upon the totality of the circumstances and utilizing its sound discretion under Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819 and the line of cases cited by Defendant in his opposition, this Court will apply a negative multiplier of .5 to the base lodestar amount of $97,500.00. Hence, the final total amount of attorney’s fees to be awarded is $48,750.00
C. Costs
Plaintiff also seeks to recover costs of $7,793.69. (See 05/31/2024 Memorandum of Costs). Defendant does not challenge these costs in his opposition and has not filed a motion to strike or tax costs.
“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Rules of Court, Rule 3.1700(b)(1).) The period is extended two court days where, as here, the cost memorandum was served electronically. (Id.; See Proof of Service.) “The court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” (Rule 3.1700(b)(3).) This rule also allows the parties to agree to extend the time for serving and filing the cost memorandum. (Id.)
Here, Plaintiff filed and electronically served his cost memorandum on May 31, 2024. Thus, the time for Defendant to move to strike or tax these costs has passed.
Accordingly, Plaintiff is awarded its costs in the amount of $7,793.69
Moving party to give notice.
IT IS SO ORDERED.
Dated: September 12, 2024 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
FN 1 - As noted by Defendant in opposition, Plaintiff did not cite the correct Code section(s) in his notice of motion. Be that as it may, there can be no fair argument that Defendant was unaware of the actual code sections that entitle Plaintiff to an award of fees.
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
