Tentative Ruling¿ 

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HEARING DATE:                 January 4, 2023 

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CASE NUMBER:                  21STLC00477

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CASE NAME:                        Brian Whitaker v. Christina A. Karagias

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MOVING PARTY:                Plaintiff on fee motion and Defendant on Motion to tax costs

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RESPONDING PARTY:       Plaintiff on costs motion and Defendant on fee motion

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JUDGEMENT ENTERED:    October 5, 2022

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MOTION:¿                              (1) Plaintiff’s Motion for Attorney’s Fees and Costs

                                                (2) Defendants’ Motion to Tax Costs

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Tentative Rulings:                  (1) Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED in the amount of $19,750.

                                                (2) Defendants’ Motion to Tax Costs is GRANTED in part, but the largest amount claimed for the plaintiff’s court reporter in an audio recorded limited jurisdiction trial needs to be ARGUED

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I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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            On October 5, 2022, the Court signed and entered judgment in favor of Plaintiff, with a written proposed statement of decision to which neither side submitted objection. The total Judgment Amount is $4,000.00.   Plaintiff now brings its Motion for Attorney’s Fees. Plaintiff is seeking $6,699.55 in costs and $37,835.00 in attorney’s fees.  On December 22, 2022, Defendant filed its brief and declaration in opposition.  No reply was filed.  On November 17, 2022, Defendants filed a Motion to Tax Costs. On December 15, 2022, Plaintiff filed an opposition to the Motion to Tax Costs.  No reply was filed.

II. ANALYSIS¿ 

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A. Plaintiff’s Motion for Attorney’s Fees

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Attorney’s fees are recoverable when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)  

 

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10), attorney fees when authorized by contract, statute or law are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).  Plaintiff was the prevailing party under the definition given in Section 1032, subd. (a)(4).

 

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include: “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) 

 

The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)

 

The Attorneys’ Fees Are Awardable

 

            A prevailing party is entitled to reasonable attorney fees in addition to other costs.¿ (CCP § 1033.5(a)(10).)¿ Attorney’s fees are an allowable cost when authorized by statute, contract or law. (CCP § 1033.5(a)(10)(A), (B), and (C).)  California Civil Code section 52, subdivision (a), provides: 

 

“Whoever denies, aids or incites a denial, or makes a discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.” 

 

(Cal. Civ. Code § 52(a).)

 

            Here, in the present matter, Plaintiff’s suit were based on violations of the ADA, a federal statute, and California’s Unruh Civil Rights Act, specifically § 52(f), making any violation of the ADA a violation of the UCRA. Plaintiff prevailed at trial on the merits of his claim. Thus, this action falls within the meaning of California Civil Code § 52(a).

 

Reasonableness of Fees

 

            The determination of what constitutes a reasonable fee generally begins with the lodestar. Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[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.” (Ibid.)

 

            “The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable. (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.)

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            Here, Plaintiff seeks a total of $37,835.00 in attorney’s fees. Dennis Price’s declaration shows that attorneys at his firm, Potter Handy, LLP, charge an hourly rate of $350 -$650, and has legal assistants who bill at $100 per hour. (Declaration of Dennis Price (“Price Decl.”, ¶¶ 15, 18-19, Exhibit 2.) Prince also acknowledges that background and credentials of each attorney and legal assistant who worked on the present action. (Id., at  ¶ 2, Exhibit 2.)  The Opposition presents such specific evidence, including numerous citations to rulings by other trial court judges who awarded considerably less per hour than the Potter Handy firm now known as the Center for Disability Access, seeks here, including a detailed analysis of claimed overcharges, and a series of ad hominem arguments generally seeking to argue that lawyers who represent disability claimants in architectural barrier cases should be paid very little for their purportedly cookie-cutter efforts. 

 

            The Court agrees with several of Defendants’ asserted deductions and reductions but disagrees with others.  The Court rejects the concept that a disability access case should be brought in small claims costs without a lawyer because the Legislature specifically included an attorneys fee provision despite limiting the plaintiff to $4,000 per violation which the Legislature is aware to be within the ambit of small claims jurisdiction.  The Court agrees with the concept that a party who brings parallel state and federal court suits must seek from a federal judge the amounts paid or incurred in the federal suit.  The Court also agrees that the manner of billing at the plaintiff’s law firm should have been handled more economically by paralegals or lower hourly rate attorneys for many of the tasks leading up to the trial.   After taking account of these issues, taking into account the Court’s direct experience with several previous disability access trials, and considering the Court’s role as finder of fact giving it a thorough immersion in the nature and quality of the pre-trial and trial work performed, the Court finds that a reasonable attorney’s fee in this case is $19,750.

           

 

Memorandum of Costs

Plaintiff is also entitled to recover reasonable costs for this action. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. §1032(b).) Here, Plaintiff seeks costs of $6,009.55 which are set forth in Plaintiff’s Memorandum of Costs filed on November 4, 2022.  The Court addresses awardable costs below.

            B. Defendants’ Motion to Tax Costs

 

Defendants filed a Motion to Tax Costs. “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the costs memorandum.  If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”  (Cal. Rules of Court, rule 3.1700(b)(1).)  The failure to timely file a motion to tax or strike costs constitutes a waiver of the right to object to costs, unless the Court in its discretion grants relief under Code of Civil Procedure Section 473, such as based upon a finding of excusable neglect.  (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; see also Cal. Rules of Court, rule 3.1700(b)(3).) 

 

A prevailing party claiming costs must file and serve a memorandum of costs either (1) within 15 days after the date of service of a notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5, (2) 15 days after the service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgment, whichever is first. (Cal. Rules of Court, rule 3.1700, subd. (a).) Any motion to strike or tax costs must be served and filed 15 days after service of the memorandum, plus an additional 5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).) 

 

 

Defendant has requested that this Court strike most of Plaintiff’s demanded costs.  The largest amount sought to be stricken is for the court reporter fees, $4.257.50.   

 

Under Code of Civil Procedure § 1033.5, subd. (a)(10), Court reporter fees as established by statute, are recoverable. Here, Defendants assert that in limited department, proceedings are recorded and the recording process itself is offered free of charge. However, Defendants note that Plaintiff insisted on a separate court reporter for his convenience. As such, Defendants argue that this Court should disallow the cost in its entirety and that Item 11 should be taxed in the amount of $4,257.50.  The Court agrees, especially given the willingness of the appellate courts to accept the audio recording as the official record on appeal.   However, Defendants have filed a notice of appeal, and if they use the plaintiff’s reporter’s transcript in lieu of hiring a reporter to prepare a written transcript, taxing that cost would be unjust.  The Court will entertain oral argument on this issue.

           

 

IV. CONCLUSION¿¿ 

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For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $19,750.  Defendants’ Motion to Tax Costs is GRANTED in part.  Costs of $__  are awarded.  Defendant is ordered to give notice.¿¿¿¿