Judge: Stephen P. Pfahler, Case: 23STCV03052, Date: 2024-08-13 Tentative Ruling

Case Number: 23STCV03052    Hearing Date: August 13, 2024    Dept: 68

Dept. 68

Date: 8-13-24

Case 23STCV03052

Trial Date: N/A

ATTORNEY FEES

MOVING PARTY: Plaintiff, Bertha Medina

RESPONDING PARTY: Defendant, Lighthouse Healthcare Center, LLC

RELIEF REQUESTED

Motion for Attorney Fees

SUMMARY OF ACTION

On December 10, 2023, the court entered judgment in favor of Plaintiff Medina against Defendant Lighthouse Healthcare Center, LLC, for $12,500 pursuant to an Offer to Compromise under Code of Civil Procedure section 998.

RULING: Granted.

Plaintiff Bertha Medina moves for $53,034 in attorney fees following the 998 offer to compromise and agreement for the recovery of fees. Defendant Lighthouse Healthcare Center, LLC, in opposition challenge any recovery of attorney fees, and alternatively maintain the requested fees are inflated. Plaintiff in reply challenges the lack of any substantive specific challenge presented by Defendant. Plaintiff reiterates the categorical entitlement to attorney fees pursuant to acceptance of the 998 offer, and the application of the multiplier. Plaintiff also challenges any reduction based on a ratio to the amount recovered.

The 998 offer led to an $12,500 recovery, with attorney fees to be determined via noticed motion before the court. The accepted offer specifically delegated determination of fees to the court, thereby entitling Plaintiffs to bring the subject motion. (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168–169.) Plaintiff is a presumed a prevailing party and entitled to recover statutory fees. (Code Civ. Proc., §§ 1032, subd. (a)(4), 1033.5, subd. (a)(10)(B).)

A motion for attorney fees leading up to and including rendition of the judgment must be served and filed within the time for the filing of a notice of appeal in a civil case. (Cal. Rules Ct., rule 3.1702(b)(1).) The time for the filing of a notice of appeal in an unlimited action is 60 days if a “Notice of Entry” of Judgment was served by the court clerk or a party to the action, or within 180 days of entry of judgment. (California Rules of Court rule 8.104.)  The motion was timely filed 100 days after entry of judgment.

The court considers the sought after request for $53,034. “‘[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. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

The reasonableness of attorney fees lies within the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court makes it determination based on the consideration of 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.” (Ibid.) The court should apply an objective standard of reasonableness. (Id. at p. 1098.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) The court adheres to the “market rate” approach for contingency cases. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619-620.)

The number of hours is not separately totaled in any form. The court calculates a total number of hours at just under 62 subject to arithmetic verification/correction by either party. [Evidence Package, Ex. A.]

Counsel lists billable rates between $250 to $1,200 per hour, with a specific itemized statement of work from September 14, 2021, through February 26, 2024, with total fees adding up to $44,195, plus an additional $8,500 sought for the instant motion. Defendant only offers a summary challenge to the hourly rates. While the court cannot take judicial notice of other courts approved billable rates, the court finds the collective billing represents a reasonable range of market rates and a properly blended rate structure. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247, 256; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619-620; see Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973) 487 F.2d 161, 167.)

The billing statement provides a number of variable rates: significant amounts of work by support staff at $250 per hour, MQE at $550 per hour, with later work by SLO at $650 and FRN at $950, and finally limited work by RRY at $1,200. The court finds a blended rate of $750/hour constitutes a representative blended market rate recovery.

Defendants seek to reduce or even index the recovered amount downward in some sort of proportion to the 998 recovery. Some courts in fact advised against rewarding fees as means of discouraging attorneys from litigating “questionable claims.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1175; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250.) The position finds general support. (Hensley v. Eckerhart (1983) 461 U.S. 424, 434-436; Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990.) The court declines to consider the opinions of the parties over merits of the underlying action, and the court was not presented with a. request to consider the evidentiary value of the claims. The settlement offer itself therefore demonstrates a measure of validity to the underlying claims. The court also declines to reduce the award on the basis of the “limited” success given the public policy goals for enforcement of labor standards inherent in employment litigation. The court instead addresses the reasonableness of the items. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1134; Serrano v. Unruh, supra, 32 Cal.3d at p. 635.)

“In referring to ‘reasonable’ compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132; Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807,  817.) Defendant generally challenges both the reasonableness of effort spent and the resources dedicated to the claim without specific address of any particular entries or the exact conduct.

While the opposition presents a facially deficient and conclusive challenge to the requested fees, the court can neither rubber stamp approve the billing statement nor categorically reduce fees. The billing statement contains documented examples of seemingly redundant billing on items and to unidentified personnel. (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) The statement shows significant amounts entries both pre-filing on the February 10, 2023, filed complaint, as well as numerous items following the complaint into mediation and the 998 offer. “[C]ounsel may not submit a plethora of noncompensable, vague, blockbilled attorney time entries and expect particularized, individual deletions as the only consequence. The trial court could reasonably conclude counsel made no effort to prune the fee request to comply with the law. Counsel erred grievously by attempting to transfer that responsibility onto the trial court. The trial court could reasonably conclude counsels disregard for the law undercut the credibility of their fee request and, as officers of the court, warranted a severe reaction.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1329.) The court must make an individual determination of entitlement. (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 280-281.)

According to Ramin Younessi and Fumio Nakahiro, the initials of FRN, SLO, CAF, and MQE correspond to [] attorneys Fumio Nakahiro, Samantha L. Ortiz, Christopher Afgani, and either former colleague or Mae Elain Delos Santos, who never submitted a separate declaration notwithstanding the representation in the declaration of Younessi [Declarations of Ramin Younessi ¶ 16, and Fumio Nakahiro, ¶ 3.] None of the declarations identify JEN, HBL, or GGZ, though given persons billing rate at $250/hour, the court presumes clerical or paralegal staff.

The court finds multiple entries by MQE “Emailed JEN to update SOL calendar,” including 10-1-2021, 11-1-21, 12-1-21, 2-23-22, 3-31-22, 4-27-22, 7-5-22, 8-3-22, 9-12-22, with additional entries on 4-18-22, 4-22-22 and 4-27-22, from MQE to HBL to “update calendar.” The e-mails to JEN regarding the SOL calendar resumed on 6-1-22, and back to HBL and GGZ on 8-3-22 regarding calendar updates, with a second e-mail to JEN for the SOL calendar on the same date. Next JEN SOL updates on 9-12-22, and finally on 11-1-22. JEN reviewed said e-mail on 10-1-21, and reviewed the SOL calendar on 7-5-22 and 9-12-22 The court finds the 16 entries excessively redundant and lacking justification again notwithstanding the lack of any specific challenge from Defendant on any particular item.

The court finds the number of entries, even by clerical staff excessive and insufficiently descriptive, including entry of “word instead of two” on 1-23-23 by JEN, “attached email” by ARS on 2-15-23 (to be followed by a second email entry on 2-17-23), “cleared task” by ARS on 2-17-23, 2-26-23 “process mail” by COR, 8-29-23 “information” on 8-29-23 by FRN. Even for slightly more descriptive entries, the court notes a number of entries for the “ER” related issues on 12-16-21, 12-29-21, 1-17-21, 1-24-22, 3-14-22, 6-1-22, which presumably refer to some form of records obtained through Plaintiff’s own executed release. The court also takes particular note of the two (2) hours for “File review and training with RMO re ER records issue” on 12-29-21, which questions the necessity of “training” for this specific case. Scheduling the second client interview also finds multiple entries on 2-23-22 from three different people, 3-24-22, 3-28-22, 4-18-22, 4-22-22, 4-28-22, 5-5-22, 5-11-22, 7-8-22 (rescheduled interview), 7-18-22, 8-1-22 (no answer), 8-3-22, and 9-1-22. Notwithstanding the multiple entries on certain items, the court accepts the mutilple entry billing statements from the individual participants, including the subject items as well as the entry on December 1, 2021.

The mediation section also includes any number of redundant entries. On 9-20-23, LZB indicates two separate entries for “convo with client re: mediation,” which also included multiple other entries on the same date for said medication from LZB, and two additional conversation entries on 10-17-23 and 10-18-23. A number of mediation related entries follow in May, June, July, and August into September 2023, which the court will not individually list each item given the dozens of entries, though the court accepts the six hours spent for the appearance at the mediation. The 998 offer includes more than a dozen entries from September to October, and again in December.

Also buried into the expense report is review for the entry of attorney fees on 11-16-23, 11-21-23, 12-7-23, 12-21-23, 1-18-24, 1-19-24, and 2-26-24, which is directly incorporated into the request for the base fee, and not acknowledged in the additional and separate request for fees. The subject fields also raises questions on the number of entries on the expense report items on January 29, 2024 and February 7, 2024, especially given the separate, unarticulated request for attorney fees in the instant motion, other than a requested total for over $8,000.

The court finds the subject items show redundant billing and a conflation of items, especially the attorney fee request. The court therefore deducts 25 hours from the approximately 62 hours totaled, and allows for five (5) hours on the subject motion to recover. Given the vast majority of the billing was completed in 0.10 hour increments, with only selective amounts of work billed at anything more than said units, the court finds 37 hours of work completed by at least seven different individually identified persons billing more than reflects the workload for a case settled after mediation and pursuant to a 998 offer without any significant discovery or law and motion. In other words, the court finds the dozens and dozens of redundant and questionably necessary entries at increments from 0.10 to 2.0 hours more than justifies the reduction of nearly 25 hours, while also supporting its finding from the reviewed work that the 37 hours of listed work (plus five for the instant motion) supports the course and conduct of the litigation independent of the monetary amount recovered. The court therefore uses an hourly figure of 42 hours multiplied by the $750 hourly rate for a total of $31,500.

When considering a lodestar enhancement request, the court must consider a series of factors. “[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.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “Contingency and delay factors” apply in consideration of the application of a lodestar enhancement in order to reflect the “semiguaranteed” recovery of fees upon a successfully prevailing party, but any consideration must still acknowledge the “contingency” nature of representation in general. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 400 (footnote 11).)

“In Serrano IV, applying the same principles to the statutory fee award under Code of Civil Procedure section 1021.5, we reiterated that fee awards should be fully compensatory. We approved the calculation of attorney fees beginning with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type. (Citation.) [¶] We held in Serrano IV that, absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee. (Citation.) We explained that the purpose behind statutory fee authorizations—i.e., encouraging attorneys to act as private attorneys general and to vindicate important rights affecting the public interest—'will often be frustrated, sometimes nullified, if awards are diluted or dissipated by lengthy, uncompensated proceedings to fix or defend a rightful fee claim.’ (Citation.) [¶] We acknowledged the discretion of the trial court in setting attorney fees, but emphasized that because the determination of the lodestar figures is so fundamental to arriving at an objectively reasonable amount, ‘the exercise of that discretion must be based on the lodestar adjustment method.’ (Ibid.) We also reiterated that the lodestar figure may be increased by application of a fee enhancement, or reduced as appropriate, after the trial court has considered other factors concerning the lawsuit, including the contingent nature of the fee award.” (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1133–1134.)

The court declines to award a multiplier on the subject action. “The lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in “ ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts” that the lodestar amount is unreasonably low or unreasonably high.” (Van Gerwen v. Guarantee Mut. Life Co. (9th Cir. 2000) 214 F.3d 1041, 1045.) The court finds the lodestar determination sufficiently addresses the fee. Nothing in the litigation over the subject vehicle which led to a 998 offer following mediation demonstrates a rare or exceptional case showing a significant benefit beyond compensation for the wage and hour and FEHA claim, as well as a fee reflecting the contingency nature of the representation. (Blum v. Stenson (1984) 465 U.S. 886, 901; Hensley v. Eckerhart, supra, 461 U.S. at p. 434; see Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 844.)

The court also denies the negative multiplier request. Application of a negative multiplier effectively constitutes a collateral device for reducing the fee on the basis of the size of the accepted 998 offer. (See Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41.)

The court therefore awards $31,500 in fees reflecting lodestar calculated fee, recovery for the instant motion, and lack of any multiplier enhancement or negative application.

As a prevailing party, Plaintiffs are also entitled to recover post-offer costs as well. The court in no way addresses the right to recovery of costs. The burden remains with Defendant to challenge the February 8, 2024, filed memorandum of costs

Plaintiff to give notice.