Judge Teresa A. Beaudet, Case 20STCV19290 2023-02-27 Tentative Ruling

Plaintiff Jason Dizon (“Plaintiff”) filed this action against Defendant Western Asset Management Company, LLC (“Defendant”) on May 20, 2020.

In the Complaint, Plaintiff asserts causes of action for (1) retaliation in violation of Equal Pay Act, (2) whistleblower retaliation, (3) retaliation in violation of FEHA, (4) retaliation in violation of Cal. Labor Code § 98.6, (5) discrimination on the basis of association with protected group in violation of FEHA, (6) failure to prevent discrimination and/or retaliation in violation of FEHA, (7) wrongful termination in violation of public policy, and (8) unlawful prohibition on discussing wages and working conditions.[1]

Defendant filed a motion pursuant to California Code of Civil Procedure sections 128.5 and 128.7 for an order imposing monetary sanctions in the amount of $350,785.50 in attorney fees in this matter, plus any additional fees incurred between February 1, 2022 and the time of the Court’s ruling on this motion, against Plaintiff and his counsel in this action, Workplace Justice Advocates, PLC, including Tamara S. Freeze (“Workplace Justice”). Plaintiff opposed. On October 26, 2022, the Court issued a minute order continuing the hearing on the motion to November 29, 2022. The October 26, 2022 minute order provides, inter alia, “Defendant is to submit bills and Declaration by November 2, 2022. Reply is due by November 14, 2022.”

On November 2, 2022, Defendant filed a Second Supplemental Declaration of Michele J. Beilke in Support of Defendant’s instant motion for sanctions. On November 14, 2022, Plaintiff filed a response.

On November 29, 2022, the Court issued an order denying the motion for sanctions as it relates to Plaintiff’s first, second, third, fourth, sixth, seventh, and eighth causes of action. As set forth in the November 29, 2022 Order, “[w]ith regard to Defendant’s motion as it relates to Plaintiff’s fifth cause of action, the Court continues the hearing on the motion to 2/16/23, at 10 a.m. in Dept. 50. On or before 1/13/23 Defendant may file and serve another supplemental declaration with supporting billing records setting forth only the work performed by Defendant’s counsel in defense of Plaintiff’s fifth cause of action prior to May 2, 2022, with a courtesy copy delivered to Dept. 50. Plaintiff’s response, if any, is to be filed and served by 1/27/23, with a courtesy copy delivered to Dept. 50.” (Order at p. 13:14-20.)

On January 13, 2023, Defendant filed a “Third Supplemental Declaration of Michele J. Beilke in Support of Defendant Western Asset Management Company, LLC’s Motion for Sanctions Under Cal. Code of Civ. Proc. Secs. 128.5 and 128.7 Against Plaintiff Jason Dizon and his Counsel Workplace Justice Advocates (Tamara Freeze).” Plaintiff filed a response to Defendant’s counsel’s third supplemental declaration on January 31, 2023.

The Court rules on Plaintiff’s objections to the third supplemental declaration of Michele J. Beilke as follows:

Defendant also filed objections to Plaintiff’s response to the third supplemental declaration of Michele J. Beilke, which request that the Court strike or refuse to consider Plaintiff’s response.

As to Objection No. 1, because the Court does not find that the entirety of Plaintiff’s response is objectionable, the Court declines to strike the response. However, as discussed in further detail below, the Court agrees with Defendant that portions of the response are an improper request for reconsideration.

As to Objection No 2, because the Court does not find that the entirety of Plaintiff’s response exceeds the scope of the briefing granted in the Court’s November 29, 2022 Order, the Court declines to strike the response. However, as discussed below, the Court agrees that portions of the response exceed the scope of briefing allowed by the November 29, 2022 Order.

In Objection No. 3, Defendant notes that Plaintiff’s response is untimely. As set forth above, the November 29, 2022 Order provides that “Plaintiff’s response, if any, is to be filed and served by 1/27/23.” Plaintiff’s response was filed four days late on January 31, 2023. The Court elects to exercise its discretion to consider Plaintiff’s untimely response (Cal. Rules of Court, Rule 3.1300, subd. (d)) but admonishes Plaintiff that any¿future filings must comply with the Court’s orders.

In Objection No. 4, Defendant notes that Plaintiff’s 20-page response exceeds the page limits permitted by California Rules of Court, rule 3.1113. “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” (Cal. Rules of Court, Rule 3.1113, subd. (d).) The Court will exercise its discretion to consider Plaintiff’s response, but the Court admonishes Plaintiff that¿any¿future filings must comply with the California Rules of Court.¿

The Court’s November 29, 2022 Order provides, inter alia, that “the Court finds that Defendant has demonstrated good cause for sanctions in connection with Plaintiff’s cause of action for discrimination. As discussed, Defendant provides evidence that Plaintiff testified that he does not believe that Defendant discriminated against him. In addition, Plaintiff dismissed the discrimination cause of action outside of the Code of Civil Procedure section 128.7, subdivision (c)(1) safe-harbor period and after the instant motion for sanctions was filed.” (Order at p. 9:3-8.)

The November 29, 2022 Order also provides, “Plaintiff asserts that the Court should limit Defendant’s request for fees only as to the work performed on Plaintiff’s fifth cause of action for discrimination. The Court agrees. Defendant seeks: (1) specific billing entries before May 2, 2022 expressly attributed to Plaintiff’s discrimination claim in the total amount of $6,775; (2) 16.67% of remaining $433,368 in fees incurred before May 2, 2022, totaling $72,242.45; (3) $34,005 in additional fees incurred after May 2, 2022 related to Defendant’s motion for sanctions; and (4) $12,082.50 in as-yet-unbilled fees related to Defendant’s motion for sanctions…This amounts to a total of $125,104.95 in requested fees...” (Order at p. 10:17-24 [internal quotations omitted].)

The Court noted in the November 29, 2022 Order that “[a]s to the requested amount of $6,775, Plaintiff asserts that there are only ten billing entries in Defendant’s records that are directly related to Defendant’s work on the fifth cause of action, in the total amount of $6,055…Although Defendant asserts that specific billing entries before May 2, 2022 expressly attributed to Plaintiff’s discrimination cause of action amount to $6,775, it is unclear how Defendant arrived at this figure. The billing entries identified by Plaintiff totaling $6,055 appear to be the only billing entries in Defendant’s Exhibit 1…that solely concern the fifth cause of action for discrimination on the basis of association with protected group.” (Order at p. 10:25-11:5.)

The November 29, 2022 Order further provides that “the Court finds that it is reasonable to award one-eighth of the requested $34,005 and one-eighth of the requested $12,082.50 in fees incurred in connection with the instant motion for sanctions, totaling $5,760.93.” (Order at p. 11:13-15.)

In her third supplemental declaration, Ms. Beilke indicates that Defendant now seeks to recoup no less than $40,548.88 in attorney’s fees attributable to its defense of Plaintiff’s fifth cause of action for discrimination. (Third Suppl. Beilke Decl., ¶¶ 14-15.) Defendant indicates that the 40,548.88 amount includes:

1. $6,055 in fees for billing entries before May 2, 2022 expressly attributed to Plaintiff’s discrimination claim. (Third Suppl. Beilke Decl., ¶ 14(a).)

2. $5,760.93 in fees incurred after May 2, 2022 in connection with Defendant’s motion for sanctions. (Third Suppl. Beilke Decl., ¶ 14(b).)

3. $2,105.63 in additional fees incurred before May 2, 2022 in connection with Defendant’s motion for sanctions. (Third Suppl. Beilke Decl., ¶ 14(c).)

4. $830.63 in fees incurred in connection with responding to Plaintiff’s discrimination allegations in his complaint. (Third Suppl. Beilke Decl., ¶ 14(d).)

5. $5,158.13 in fees incurred in connection with conducting and responding to discovery related to Plaintiff’s fifth cause of action for discrimination. (Third Suppl. Beilke Decl., ¶ 14(e).)

6. $1,323.56 in fees incurred in connection with taking Plaintiff’s deposition, up to and including his deposition on December 16, 2021. (Third Suppl. Beilke Decl., ¶ 14(f).)

7. $19,315 in fees incurred in addressing Plaintiff’s discrimination cause of action in Defendant’s motion for summary judgment. (Third Suppl. Beilke Decl., ¶ 14(g).)

Ms. Beilke’s third supplemental declaration contains explanations as to how the above amounts were calculated. (See Third Suppl. Beilke Decl., ¶ 14.)[2]

As an initial matter, Plaintiff asserts that “[i]n applying [Fox v. Vice (2011) 563 U.S. 826 (Fox)], since Plaintiff’s fifth cause of action is so closely interrelated to other causes of action already deemed not frivolous, the Court should deny Defendant’s Motion for Sanctions in its entirety.” (Plaintiff’s Response at p. 1:19-21.) Plaintiff similarly asserts that Defendant’s counsel’s work on the motion for summary judgment and motion for sanctions was excessive, such that Defendant’s request for fees should be denied in its entirety. (Plaintiff’s Response at p. 15:1-13.) Plaintiff also contends that “[i]mposing sanctions against Plaintiff and his counsel is not justified.” (Plaintiff’s Response at p. 15:23.)

The Court agrees with Defendant that these arguments are an improper request for reconsideration. As set forth above, the Court already found in its November 29, 2022 Order that “Defendant has demonstrated good cause for sanctions in connection with Plaintiff’s cause of action for discrimination.” Pursuant to Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Plaintiff’s response to Defendant’s counsel’s third supplemental declaration is not a proper motion for reconsideration made pursuant to the requirements of Code of Civil Procedure section 1008.

The Court also agrees with Defendant that Plaintiff’s arguments that the motion should be denied in its entirety exceeds the scope of briefing set forth in the November 29, 2022 Order.

Plaintiff also argues that the Court “must not award fees before Plaintiff’s December 2021 deposition.” (Plaintiff’s Response at p. 16:8-9.) The Court finds that this argument is also an improper request for reconsideration. As set forth in the Court’s November 29, 2022 Order, this argument was already raised by Plaintiff. (See November 29, 2022 Order at p. 10:6-16.)

As a result of the oral argument at the last hearing on this motion, the Court has reviewed all of the briefs and declarations submitted by the parties a second time and the authorities cited therein. The Court specifically revisited the Fox case wherein the United States Supreme Court found that 42 U.S.C. section 1988 “allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.” (Fox v. Vice, supra, 563 U.S. at p. 836.) As noted by Plaintiff during the oral argument, Fox has been adopted by at least one California court, namely John Russo Industrial Sheetmetal, Inc. v City of Los Angeles Dept. of Airports (2018) 29 Cal. Pp. 5^th 378, 388. In that case, the Court relied upon Fox in finding that “[a] defendant who prevails on a CFCA [California False Claims Act] cause of action may recover only those fees incurred exclusively to defend against frivolous CFCA claims and not for fees incurred to defend against nonfrivolous CFCA claims.”

As noted by Defendant at the hearing, the Fox court does acknowledge that “once a party has “submit[ted] appropriate documentation to meet ‘the burden of establishing entitlement to an award’. . . . trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfections. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time. Similar guidance is provided by the court in Dwyer v Crocker Nat’l Bank (1987) 194 Cal. App. 3e 1418, another case noted by counsel for Defendant at the hearing. In discussing the award of attorney fees under CCP section 128.5, the court emphasized that “the court is not bound in its determination by such traditional factors as hours consumed, statements mailed, results attained, and the like. Such an award for attorneys fees is not the subject of a “strict accounting” as might be required in other areas of the law such as in the administration of trusts and estates. Although the court might be aided by such evidence, the court is an ‘expert’ on the subject of attorneys fees and needs no expert testimony on the atter for it to make a determination of a reasonable attorneys fees award.” (Dwyer, at 1438.)

However, the guidance provided by the “rough justice” comment in the Fox case and the guidance in Dwyer, presuppose that entitlement to the award has been established. The difficulty in the case at hand is with the “establishment” portion of the analysis. There is no question that the Court has found that Defendant is entitled to fees for the frivolous discrimination cause of action; but the establishment of which fees were incurred by Defendant in defending against that frivolous cause of action has turned out to be highly problematic. The Court went back over the timesheets provided by Defendant and the Court cannot conclude that all the time requested by Defendant in connection with the discrimination cause of action can be segregated from the time spent on the remaining causes of action. Applying percentages or portions (such as one eighth) does not comport with the holdings in the Fox and John Russo cases. And even though different statutes were involved in those cases, the Court concludes that the principles enunciated therein should apply equally to this employment case. As a consequence, the Court finds that it should award only those fees that clearly apply to the discrimination cause of action and it should not speculate as to what percentage or portion of other fees were incurred in connection with other matters such as discovery or the summary judgment motion. As a result, the Court awards attorney fees in the amount of $7,967.50. This amount consists of the $6,055 for the billing entries before May 2, 2022 expressly attributed to Plaintiff’s discrimination claim, and $1,912.50 for billing entries expressly attributed to work on the reply brief where Defendant addressed the dismissal of the discrimination cause of action.

Based on the foregoing, the Court grants Defendant’s motion for sanctions as it relates to Plaintiff’s fifth cause of action, in the total amount of $7,967.50.

[1]On May 2, 2022, Plaintiff filed a request for dismissal of his fifth cause of action, with prejudice.

[2]Ms. Beilke also indicates that although the billing entries rarely reference specific causes of action, she was “able to review the billing records and identify, based on [her] understanding of the work that has been performed in this case, which entries relate to work that would have been performed in defense of Plaintiff’s fifth cause of action.” (Beilke Decl., ¶ 12.)

Superior Court of California

County of Los Angeles

Department 50