Judge: Teresa A. Beaudet, Case: BC413753, Date: 2023-02-09 Tentative Ruling

Case Number: BC413753    Hearing Date: February 9, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background   

Plaintiff Scott E. Lowery (“Plaintiff”) filed the instant action on May 12, 2009 against Defendants Los Angeles Community Colleges and Southern California Risk Management Associates. On July 22, 2009, Plaintiff filed a First Amended Complaint asserting causes of action for (1) disability discrimination, (2) failure to engage in a good faith, timely interactive process, (3) failure to accommodate, (4) failure to prevent disability discrimination, and (5) retaliation in violation of FEHA. On March 4, 2010, Plaintiff filed an amendment to the complaint substituting the name of Los Angeles Community College District for the incorrect name Los Angeles Community Colleges.

Following a lengthy procedural history in this matter, on May 10, 2017, the parties participated in a fourth mediation. (deRubertis Decl., ¶ 82.) The mediation produced a settlement that was fully executed on September 25, 2017 (the “Settlement Agreement”). (deRubertis Decl., ¶ 82.) The Settlement Agreement provides, inter alia, that the District shall pay Plaintiff and his attorneys the total sum of $600,000.00. (deRubertis Decl., ¶ 82, Ex. Z, § 2.) Section 8 of the Settlement Agreement provides that, “[n]otwithstanding the foregoing, the released claims shall also not include Lowery’s right, or the right of his attorneys, to seek and recover attorneys’ fees and costs. The Parties acknowledge that Lowery is the prevailing party in this litigation for purposes of recovering attorneys’ fees and costs, and the Parties acknowledge and understand that, in the event the Parties are not able to resolve Lowery’s claim for attorneys’ fees and costs, this issue will be submitted to the Court for resolution.” (deRubertis Decl., ¶ 82, Ex. Z, § 8.)

Plaintiff now moves for an order awarding statutory attorneys’ fees under Government Code section 12965(b) and as provided in the settlement. Los Angeles Community College District (the “District”) opposes.[1] 

On December 5, 2022, the Court issued a minute order concerning the instant motion which provides, inter alia, that “[t]he parties did not resolve the timing issue regarding motion for attorney fees. Plaintiff will file the opening brief on this issue on or before 12/30/22. Defendant will respond on or before 01/18/23. Reply will be due on or before 01/27/23. Pursuant to oral stipulation, the Hearing on Motion for Attorney Fees scheduled for 12/05/2022 is continued to 02/09/23…[sic] The Court finds that the motion for attorney fees is not untimely, the Court will set a new hearing date regarding that motion at the 02/09/23 hearing.” Plaintiff filed an opening brief on December 30, 2022, the District filed an opposition on January 18, 2023[2], and Plaintiff filed a reply on January 27, 2023.

Discussion

“A trial court has discretion to award attorney’s fees and costs to the party prevailing in a FEHA action.” ((Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 331.) Government Code section 12965(c)(6) provides in pertinent part that “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.” “In FEHA actions, the discretion to deny a fee award to a prevailing plaintiff is narrow. A prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” ((Steele v. Jensen Instrument Co., supra, at p. 331 [internal quotations and citations omitted].) 

            “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. … The reasonable hourly rate is that prevailing in the community for similar work. The 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.” (PLCM Group, Inc. v. Drexler (2000)  22 Cal.4th 1084, 1095 [internal citations omitted]; see also Flannery v. Prentice (2001) 26 Cal.4th 572, 584, “[p]ursuant to long-established precedent and practice, section 12965 fees are calculated by determining the number of hours reasonably worked by the attorneys who prosecuted the matter and multiplying that number by the reasonable hourly rate those attorneys should receive for such work. Depending on the circumstances, consideration may also be given to the attorneys’ experience, the difficulty of the issues presented, the risk incurred by the attorneys in litigating the case, the quality of work performed by the attorneys, and the result the attorneys achieved.”)

            As an initial matter, the District asserts that Plaintiff’s motion for attorneys’ fees is time-barred. The District notes that California Rules of Court, rule 3.1702, subdivision (b)(1) provides that “[a] notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court--including attorney’s fees on an appeal before the rendition of judgment in the trial court--must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.”

             California Rules of Court, rule 8.104 provides that “[u]nless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of: (1)(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.” The District asserts that the motion is untimely as it was not brought within 60 days after the settlement agreement was finalized on September 25, 2017. The instant motion was filed on August 17, 2021.[3]

Plaintiff counters California Rules of Court, rule 3.1702, subdivision (b)(1) does not require the filing of a fee motion within any number of days after the execution of a settlement agreement. Plaintiff notes that there has been no entry of judgment and asserts that the predicate triggering the deadline under Rule 3.1702(b)(1) has accordingly not occurred.

The District also cites to Sanabria v. Embrey (2001) 92 Cal.App.4th 422, asserting that under this case, “where parties have voluntarily resolved the action such that the prevailing party is ascertainable and there is effectively a judgment, the statutory deadline to file a motion for attorney’s fees is triggered.” (Opp’n at p. 9:6-8.) In Sanabria, “Plaintiff and appellant John Sanabria appeal[ed] from the order awarding costs and attorney fees in favor of defendants and respondents Robert and Gloria Embrey. Sanabria contend[ed] the Embreys failed to timely file their memorandum of costs and motion for attorney fees following the voluntary dismissal of his complaint.” ((Id. at p. 424.) The Court of Appeal agreed, reasoning that “[a] voluntary dismissal immediately resolves the action as to the dismissed defendant. It entitles the dismissed defendant to costs and sometimes attorney fees as the prevailing party. Although a voluntary dismissal is generally not appealable, it is nevertheless effectively a ‘judgment’ within the meaning of California Rules of Court, rule 2(a). Accordingly, we conclude California Rules of Court, rule 870.2 governs, and the time for filing a motion for attorney fees commences upon service of notice of entry of dismissal.” ((Id. at pp. 424, 427 [internal citations omitted].) The District asserts that the Settlement Agreement here is “effectively” a judgment for purposes of (Rule 3.1702(b)(1), like the voluntary dismissal was “effectively” a judgment in Sanabria.

Plaintiff counters that Sanabria is distinguishable because it does not involve a settlement. Plaintiff also notes that the Settlement Agreement here provides that “[o]nce the issue of Lowery’s attorneys’ fees and costs is resolved, either informally or through a formal fee motion, Lowery’s counsel will file a Request for Dismissal of the entire action, against all defendants, with prejudice, within 5 days of the latest of: (1) Lowery’s receipt of the settlement checks provided for herein; (2) funding of the annuity provided for herein; and (3) Lowery’s counsel’s receipt of the payment of agreed upon or Court ordered attorneys’ fees and costs.” (deRubertis Decl., ¶ 82, Ex. Z, § 4.)

The District also indicates that the parties stipulated and moved ex parte on June 14, 2017, to vacate the final status conference and trial date based on the parties’ settlement. (Smith Decl., ¶ 9.) The Court’s June 14, 2017 minute order provides, inter alia, that “[t]he FSC and Trial dates are advanced and vacated. The Court sets a hearing date for a motion re attorneys’ fees and costs for 10/31/17 in Dept. 50 at 8:30 a.m. If the attorney fee/cost issue is resolved, the parties are to promptly notify the Court and tak [sic] the hearing off calendar.” (Smith Decl., ¶ 9, Ex. F.) As the District notes, Plaintiff’s motion for attorneys’ fees was filed nearly four years after October 31, 2017. The District asserts that the motion is accordingly time-barred. Plaintiff counters that nothing in the June 14, 2017 minute order suggested that the Court’s providing the parties’ a hearing date for the motion established a mandatory filing deadline.

The District cites to Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329 in support of its assertion that Plaintiff’s motion is time-barred. In that case, “Plaintiff Wendy Y. Hernandez (Hernandez) settled her civil action as the prevailing party. After the settlement was put on the record, the trial court set a hearing three months out on an order to show cause (OSC) regarding dismissal, and ordered any motion for attorney fees to be filed and heard before the OSC date. Due to mistake, inadvertence, or neglect by counsel, Hernandez filed no motion for fees by the court-ordered deadline. The trial court refused to extend the deadline for the motion and, one month later, dismissed the action pursuant to the settlement agreement. Four months later, Hernandez’s counsel filed a motion to set aside the dismissal pursuant to the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). The trial court denied the motion, stating counsel’s mistake or inadvertence in not filing a timely attorney fees motion did not cause the dismissal of the action. Rather, counsel’s error simply caused plaintiff to lose the opportunity to file her fee motion.” (Hernandez v. FCA US LLC, supra, 50 Cal.App.5th at    p. 332.) The Court of Appeal agreed and affirmed, finding that, “[c]ounsel missed the court-ordered deadline to move for attorney fees. Section 473 provides no relief for such error.” (Id. at pp. 332, 339.)

            Plaintiff asserts that Hernandez is distinguishable because in that case, the trial court stated that it was setting a deadline to file a fee motion rather than just confirming a hearing date.  In Hernandez, “[o]n May 14, 2018, the first day of trial, the parties advised the court that they had settled the case.” (Hernandez v. FCA US LLC, supra, 50 Cal.App.5th at p. 333.) “The court followed up: ‘The only question for the court, then, is if there’s an attorney’s fees motion, I want to get a deadline. I want to set an OSC re dismissal and any attorney’s fees motion, if you don't stipulate or agree to it, it would have to be heard prior to that time.’ The court noted it will ‘put out [the] OSC re dismissal … 90 days’ and told counsel it would ‘give you time to agree on attorney’s fees or you’ll be filing your motion—or your opposition.’ The court set the ‘Order to Show Cause re Dismissal per Settlement’ for August 16, 2018; the court repeated again that any fee ‘motion [is] to be heard prior to that time.’” (Ibid.) 

            Here, the Court’s June 14, 2017 order provides, inter alia, “[t]he Court sets a hearing date for a motion re attorneys’ fees and costs for 10/31/17 in Dept. 50 at 8:30 a.m. If the attorney fee/cost issue is resolved, the parties are to promptly notify the Court and tak [sic] the hearing off calendar.” (Smith Decl., ¶ 9, Ex. F.) Plaintiff contends that “the June 14, 2017 Order is nothing like the order in Hernandez which contained multiple clear statements that the motion must be heard by the OSC date on pain of dismissal and, that the court set a ‘deadline’ prior to which the motion would ‘have to be heard.’” (Reply at p. 7:28-8:3.)

            Plaintiff also notes that the parties signed a Stipulation to Continue Motion for Statutory Attorneys’ Fees on August 26, 2021. This Stipulation and the Order thereon (the “Stipulation”) was filed on September 3, 2021. Plaintiff asserts that the Stipulation confirms that the instant motion is timely.  

The Stipulation provides, inter alia, that “IT IS HEREBY STIPULATED by and between plaintiff Scott E. Lowery (‘Plaintiff’) and his counsel, and defendant Los Angeles Community College District (‘Defendant’), by and through their attorneys of record, to continue the currently scheduled plaintiff’s Motion for Statutory Attorneys’ Fees (‘Motion’) scheduled for September 9, 2021 at 10:00 a.m. to some future date that will be set after the Plaintiff and Defendant have attempted to resolve the Motion via mediation.” The Stipulation further provides that “Plaintiff’s counsel filed their motion for statutory attorney’s fees and was preparing to file their motion for costs. However, the Parties believe that they may be able to also resolve the issues raised by the Motion for Statutory Fees and the anticipated Motion for Cost Recovery through mediation, and that mediation would be a more efficient use of party and judicial resources. The Parties are in the process of selecting a mediator and setting a mediation and therefore jointly stipulate to continue the hearing on the Motion to some future date. The parties propose to have the current motion date of September 9, 2021 released but to present an ex parte to the Court to reschedule the motion at the earliest available date after the conclusion of the pending mediation. By entering into this stipulation the Parties are not waiving any arguments and/or defenses that can be raised with regard to the Motion.”

            The Court’s September 3, 2021 Order on the motion provides that “plaintiff’s Motion for Statutory Attorneys’ Fees scheduled for September 9, 2021 at 10:00 a.m. shall be taken off calendar and will be rescheduled upon the parties presentation of an ex parte application after they determine the mediation date. Pursuant to the parties’ written agreement and in accordance with CCP section 664.6, the Court dismisses this matter without prejudice and retains jurisdiction…”  

            With regard to the Stipulation, the District asserts that “the parties expressing an interest or willingness to mediate in hopes of efficiently resolving a matter is a far-cry from a contractual agreement to mediate while tolling applicable deadlines.” (Opp’n at p. 14:8-10.) The District asserts that the subject Stipulation thus has no bearing on the question of the instant motion’s timeliness.

            However, the Court finds that the subject Stipulation is inconsistent with the District’s position in its opposition that the instant motion is untimely because it was not filed before October 31, 2017. The District agreed in the Stipulation that “Plaintiff’s Motion for Statutory Attorneys’ Fees scheduled for September 9, 2021 at 10:00 a.m. should be taken off calendar,” and that “the parties will present an ex parte application upon setting the mediation to reschedule the hearing date on the Motion for Statutory Attorneys’ Fees and a Motion for Cost Recovery.” Plaintiff then filed notices continuing the hearing date on the fee motion on September 22, 2021, March 1, 2022, and October 11, 2022, which the District does not appear to have objected to.

The District also notes that the Stipulation indicates that “the Parties are not waiving any arguments and/or defenses that can be raised with regard to the Motion,” and asserts that “[i]t would invalidate the clear intent of the parties if the Court’s Order rendered the Motion timely despite the parties’ intention to reserve this issue for subsequent motion practice.” (Opp’n at p. 15:20-22.) But the District has raised the issue of untimeliness in its briefing, which is considered herein. 

            Lastly, the District requests in its opposition to the timeliness of Plaintiff’s motion for attorney’s fees that “the Court at minimum set this matter for an OSC re dismissal regarding the delay if it does not outright rule the Motion is untimely.” (Opp’n at p. 12:2-3.) But as set forth above, the Court’s September 3, 2021 Order provides, inter alia, that “[p]ursuant to the parties’ written agreement and in accordance with CCP section 664.6, the Court dismisses this matter without prejudice and retains jurisdiction…”  

The District also makes a contrary argument that “[t]he Motion was never re-filed, re-noticed, or re-set by ex parte hearing as the Order contemplated. It was simply continued upon notice by Plaintiff’s counsel. It is therefore unclear how the Motion could even be deemed before the Court if the matter is deemed dismissed effective September 3, 2021. Given these procedural issues, the fact that the Order was never effectuated, and the fact that the Court appears to have dismissed the matter based on an incomplete picture of the procedural record, the appropriate solution would be to vacate the Order.” (Opp’n at p. 16:10-15.) The Court does not agree that the Order was never effectuated.  The Court did dismiss the case without prejudice and the Court retained jurisdiction, all in accordance with CCP section 664.6.  It is true that the Order took the Motion for Statutory Attorneys’ Fees off calendar and it was to be rescheduled via an ex parte application. However, the Court does not see what would be gained if the Court were to require Plaintiff to apply ex parte to reschedule the Motion. Here, the District has had the benefit of a noticed motion rather than an abbreviated application process.    

Based on a consideration of the arguments presented by the parties, the Court does not find that the District has demonstrated that Plaintiff’s motion for attorney’s fees is untimely.

            Conclusion

            In light of the foregoing, and the Court’s December 5, 2022 minute order that if “[t]he Court finds that the motion for attorney fees is not untimely, the Court will set a new hearing

date regarding that motion at the 02/09/23 hearing,” the Court continues the hearing on the instant motion to ____________________, 2023 at 10:00 a.m. in Dept. 50.

Plaintiff is ordered to give notice of this Order.

DATED: February 9, 2023                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court