Judge: Stephen I. Goorvitch, Case: 20STCV17447, Date: 2022-07-29 Tentative Ruling

Case Number: 20STCV17447    Hearing Date: July 29, 2022    Dept: 39

Roselyn Garcia v. Roy Medical Group, Inc.

Case No. 20STCV17447

Order to Show Cause re: Judgment

Motion for Attorney’s Fees

Memorandum of Costs

            A.        Notice and Opportunity to be Heard

            The Court initially posted a tentative order on the motion for attorney’s fees stating: “[T]he Court’s tentative view is that it may be appropriate to award total attorney’s fees, including the multiplier, between $250,000 and $300,000.”  The Court’s tentative order also noted that the jury fees had not been paid by either party, and the Court would not decide Plaintiff’s motion for attorney’s fees and any motion to tax costs by Defendant until these fees are paid.  Each party owes $807.91.    

Plaintiff’s counsel appeared at the hearing, but Defendant’s counsel did not appear.  Plaintiff’s counsel informed the Court that he was in the process of paying the outstanding jury fees.  According to Plaintiff’s counsel, Defendant’s counsel stated that he would not appear at the hearing to challenge the Court’s tentative order awarding attorney’s fees between $250,000 and $300,000.  However, Defendant’s counsel did not communicate directly with the Clerk. 

 The Court takes Plaintiff’s counsel at his word and proceeded with the hearing on that basis.  Indeed, attorneys frequently waive their appearances and their right to be heard on motions following a tentative order.  Nevertheless, the Court has an independent obligation to ensure that all parties have notice and opportunity to be heard, and the Court wishes to ensure that there was no miscommunication between the attorneys. 

Therefore, the Court issues the following tentative order following Plaintiff’s counsel’s argument.  The Court continues the hearing on these matters to Friday, July 29, 2022, at 1:30 p.m.  If Defendant’s counsel does not appear, this order will be adopted in final form, and the judgment will issue, without further argument.  If there has been a misunderstanding and Defendant’s counsel appears and wishes to be heard, the Court will allow him to do so.  If so, the Court would allow Plaintiff’s counsel to respond to any argument made by Defendant’s counsel.

            B.        Order to Show Cause re: Judgment

            Plaintiff Roselyn Garcia (“Plaintiff”) filed this wrongful termination action against Roy Medical Group, Inc. (“Defendant”) on May 7, 2020.  The case proceeded to trial on March 10, 2022.  On March 18, 2022, the jury returned a verdict in favor of Plaintiff for a total of $190,000, based upon $150,000 in past non-economic damages and $40,000 in future non-economic damages.  The jury also found that Defendant “fail[ed] to timely respond to a request to inspect or obtain copies of personnel or payroll documents made by or on behalf of Roy Medical Group.”  The Court issued a written Order to Show Cause providing notice that it intends to reduce the proposed judgment on this cause of action from $1,500 to $750 due to an error in the special verdict form:

Because the special verdict form does not clearly state that the jury found both a failure to inspect personnel and payroll documents, the Court must assume the jury only found for Plaintiff on one violation of the statute. Therefore, the Court intends to reduce the proposed judgment from $1,500 to $750 on this cause of action.

(Court’s Minute Order, dated May 17, 2022.)  Following notice and opportunity to be heard, the Court finds no good cause not to issue a judgment for Plaintiff in the amount of $190,750. 

            C.        Motion for Attorney’s Fees

            Plaintiff’s counsel seeks attorney’s fees in the amount of $305,713.75, as well as a multiplier.  Defendant’s counsel argues that the Court should not award attorney’s fees in excess of $100,000.  The Court does not consider the amount of the judgment in resolving this motion.      

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, 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.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.”  (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.)  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

            The Court has reviewed the staffing, tasks, and hours, per the declaration of Kaveh S. Elihu.  In general, the hours spent on this case appear to be reasonable and commensurate with what the Court would expect for a case of this nature.  Mr. Elihu spent 14.5 hours on the case independent of the instant motion, which is what the Court would expect from the senior partner, as he appears to have handled tasks related to case management.  Mr. Rhett Francisco, who first-chaired the trial, spent 115.25 hours on trial preparation and the trial itself and appears to have become involved in the case once it was clear the case would proceed to trial.  Mr. Samuel Moorhead, who second-chaired the trial, spent 56 hours on trial preparation and the trial itself.  These hours are not unreasonable for a trial that consumed approximately seven court days.  The associate who handled pre-trial matters, Matias N. Castro, spent 187.95 hours.  Again, in general, these hours are not unreasonable for a case that lasted over two years and involved extensive discovery. 

            Not only do the hours appear to be reasonable as a general matter, the staffing appears to have been reasonable.  Plaintiff’s counsel relied heavily upon the services of paralegals, who bill at a much lower rate than attorneys.  Similarly, Plaintiff’s counsel relied upon an associate to handle much of the “heavy lifting” in pretrial discovery, who billed at a lower rate than Messrs. Francisco and Elihu.   

            That is not to say that the billing records are perfect.  No billing records are perfect.  The Court notes that some entries are vague.  For example, Diana Casarrubias, a paralegal, spent 16 hours “discussing discovery,” and it is unclear with whom she discussed the discovery and why it was necessary to spend this much time.  The Court questions why Mr. Elihu spent 17.5 hours on this motion, which seems a bit high.  There also may be some repetition and inefficiency in having multiple professionals working on the same case, i.e., Mr. Castro handling discovery and Mr. Moorhead second-chairing the trial; etc.  The Court acknowledges some necessary imprecision in block billing as a general matter and agrees that billing in six-minute increments would have lent itself to greater precision than billing in quarter hour increments.  Nevertheless, any such issues warrant only minor reductions.  As discussed, Plaintiff’s counsel’s billing records generally are commensurate with what the Court would have expected.  Neither the billing records nor the Court’s observations reveal any flagrant inefficiency, and the Court finds no dishonesty in any of the records.  Although Plaintiff’s counsel had two attorneys at trial, each appears to have performed different roles and worked efficiently together, so the Court cannot conclude that the assignment of a second attorney was superfluous.

            The Court finds that the billing rates are slightly high, but not unreasonably high, for a case of this nature.  The Court applies a modest reduction to the rates of Messrs. Elihu, Francisco, and Moorhead, as well as the billing rate of the paralegals.  With respect to Mr. Castro’s rate, the Court generally awards lower billing rates for pretrial work, like discovery, because it requires less skill and expertise than trial work.  The Court acknowledges that Mr. Castro performed some trial-related work, too.  Therefore, the Court applies a blended rate for Mr. Castro’s work of $475 per hour.

            The Court has considered Defendant’s counsel’s argument that Plaintiff’s counsel’s attorney’s fees should be reduced because Plaintiff’s counsel dismissed numerous causes of action and elected not to seek economic damages.  The Court declines to reduce the requested attorney’s fees on this basis, as the Court cannot conclude that the work performed on this case would have been substantively different if those causes of action had never been filed. 

Based upon the foregoing, the Court awards as follows:

1.         Staff                            184 hours at $150 per hour                 $27,600

2.         Mr. Castro                   169 hours at $475 per hour                 $80,275

4.         Mr. Moorhead             56 hours at $600 per hour                   $33,600

5.         Mr. Francisco              115.25 hours at $750 per hour            $86,437.50

6.         Mr. Elihu                     28 hours at $800 per hour                   $22,400

            Total                                                                                        $250,312.50   

            Plaintiff’s counsel also seeks a multiplier.  “Whether a multiplier or demultiplier is appropriate is based on several factors, including (1) the risks presented by the litigation; (2) the novelty and difficulty of the legal and factual issues involved; (3) the results obtained on behalf of the plaintiff; and (4) the skill exhibited by counsel.  (In re Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.)  “The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where [1] an exceptional effort produced [2] an exceptional benefit.”  (Graham v. DaimlerChrysler Corp. (2005) 34 Cal.4th 553, 582, numerical alterations added.)  The Court considers the delay in Plaintiff’s counsel’s payment, as well as the contingent nature of this case.  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.)  The Court agrees that a modest multiplier is appropriate based upon these factors.  Plaintiff’s counsel bore the risk of this litigation, which has lasted over two years.  Not only did Plaintiff’s counsel risk not being paid, Plaintiff’s counsel has had to wait over two years for payment.  The Court notes that Plaintiff’s counsel obtained a superior result for Plaintiff on a case with a strong defense and a skilled defense counsel.  Therefore, the Court awards a multiplier of 0.2, which increases the award by an additional $50,062.50.

            Based upon the foregoing, the Court orders Defendant to pay Plaintiff’s counsel a total of $300,375 in attorney’s fees within thirty (30) days.

            C.        Memorandum of Costs

            Plaintiff has filed a memorandum of costs seeking costs of $22,711.21.  The memorandum of costs was served on June 7, 2022, via email.  Defendant’s counsel has objected and indicated that he intends to file a motion to tax costs.  At the hearing, Plaintiff’s counsel argued that Defendant waived the right to file the motion, because it was due 15 days after the memorandum of costs was filed, per California Rules of Court, rule 3.1700.  However, rule 3.1700 also states that the memorandum of costs must be served and filed within 15 days after service of the notice of entry of judgment, which has not yet occurred.  The Court need not resolve this dispute at this time.  The Court declines to award costs on this motion.  Instead, the Court will address this issue if any motion to tax costs is filed.  However, the Court orders the parties to meet-and-confer concerning the issue of costs forthwith.

            D.        Jury Fees

            The Court orders the parties to pay their jury fees on or before August 5, 2022. 

            E.         Notice

            The Court orders the clerk to re-set the hearings on the instant matters for Friday, July 29, 2022, at 1:30 p.m.  The Court orders the Clerk to serve this order upon the parties via email and first-class mail.