Judge Teresa A. Beaudet, Case BC413753 2023-04-06 Tentative Ruling

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 (“FAC”) 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, subdivision (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.”

On February 9, 2023, the Court issued an Order finding, inter alia, that “[b]ased 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.” (February 9, 2023 Order at p. 9:14-15.) The Court continued the hearing on the instant motion to April 6, 2023.

“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, subdivision (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.”)

“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437 [internal citations omitted].) “In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees . . . .” (Id. at p. 437.)

Plaintiff requests a lodestar total of $1,135,951.30 for work performed by The deRubertis Law Firm, APC, Pine Tillet Pine, LLP, and the Lucien Law Group. (deRubertis Decl., ¶ 118; Mot. at pp. 19:21-20:12.)

The deRubertis Law Firm billed a total of 1,138.7 hours for services rendered. (deRubertis Decl., ¶ 118.) Plaintiff requests hourly billing rates for The deRubertis Law Firm, APC as follows: David M. deRubertis (attorney), $750/hour, Kimberly Higgins (associate), $425.00/hour; and Kari deRubertis (paralegal), $125/hour. (deRubertis Decl., ¶¶ 20, 30-32.)

Pine Tillet Pine, LLP billed a total of 222.64 hours for services rendered. (Pine Decl., ¶ 20; deRubertis Decl., ¶ 118.) Plaintiff requests hourly billing rates for Pine Tillet Pine, LLP as follows: Norman Pine (partner), $875/hour, Beverly Pine (partner), $825/hour, and Stacy Freeman (partner), $460/hour. (Pine Decl., ¶ 14.)

The Lucien Law Group billed a total of 513 hours for services rendered. (deRubertis Decl., ¶ 118.) Plaintiff requests hourly billing rates for the Lucien Law Group as follows: Darryl M. Lucien, $500/hour. (Lucien Decl., ¶ 9.)

Plaintiff’s counsel’s educational background and experience is provided to support the reasonableness of the requested hourly rates. (deRubertis Decl., ¶¶ 4-17, 32; Pine Decl., ¶¶ 7-11, 18; Lucien Decl., ¶¶ 4-8.)

In the opposition, the District references a prior May 4, 2012 Order in this matter on a previous motion for attorney’s fees filed by Plaintiff, in which the Court reduced rates requested by Plaintiff’s counsel. (Smith Decl., ¶ 5, Ex. C.) However, the District does not address the rates requested in connection with the instant motion, and does not appear to argue that Plaintiff’s counsel’s hourly rates requested herein should be reduced.

The Court finds that the hourly rates requested by Plaintiff’s counsel are reasonable and commensurate with rates charged by attorneys with comparable skill and experience.

While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, including “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award” and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

Plaintiff asserts that a multiplier of between 1.4 and 2.0 is warranted here. Plaintiff contends that a lodestar multiplier is appropriate here due to (1) the contingency fee nature of the case, (2) preclusion from other work resulting from the representation, (3) the novelty or difficulties in the case and skill displayed in presenting it, and (4) the results obtained.

As to the contingency fee nature of the case, in Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138, the California Supreme Court noted that “the purpose of a fee enhancement is primarily to compensate the attorney for the prevailing party at a rate reflecting the risk of nonpayment in contingency cases as a class.” Plaintiff asserts that in this case, that the risk of contingent representation should be met with an enhanced fee award. (Mot. at p. 18:13-16, citing to deRubertis Decl., ¶¶ 105-113, 119; Pine Decl., ¶¶ 21-26; Lucien Decl., ¶¶ 24-26.)

The District asserts that the contingency factor does not support a lodestar multiplier, contending that “courts have expressed hesitancy to apply fee multipliers in the context of FEHA claims because the contingent risk is limited by the statutory entitlement to fees…” (Opp’n at p. 17:7-9.) The District cites to Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137, where the Court of Appeal found, inter alia, that “although attorney fees were properly awarded under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., the trial court’s enhancement of those fees was not supported by the factors it cited as justifying the use of a multiplier of 1.7.” The Weeks Court noted that “[l]ooking first to the contingent nature of the award, as has already been discussed, the situation here is unlike that in the Serrano cases, where it was uncertain that the attorneys would be entitled to an award of fees even if they prevailed. Government Code section 12965, subdivision (b) created a reasonable expectation that attorney fees would not be limited by the extent of Weeks’s recovery and that Weeks’s attorneys would receive full compensation for their efforts. The contingent nature of the litigation, therefore, was the risk that Weeks would not prevail. Such a risk is inherent in any contingency fee case and is managed by the decision of the attorney to take the case and the steps taken in pursuing it.” (Id. at p. 1175.) The District asserts that Plaintiff has not identified any factors unique to the present case such that the contingent risk would warrant a multiplier. In addition, the District notes that a “trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 [emphasis in original].)

As to the preclusion factor, Plaintiff asserts that “the preclusion factor is evident given the amount of hours spent by these small law firms.” (Mot. at p. 18:25-26.) Mr. deRubertis states that he was “necessarily precluded from other employment by agreeing to try this case.” (deRubertis Decl., ¶ 110.) Mr. deRubertis also states that “[d]uring the weeks in preparation for this trial and during the trial itself, I did not screen any potential clients; indeed, each time trial approached if we actually commenced trial preparations, all new case intake essentially came to a grinding halt in my office.” (deRubertis Decl., ¶ 111.) In addition, Mr. deRubertis states that he “was required to turn down two other opportunities for trials that [he] could have otherwise done during the time period of this case.” (deRubertis Decl., ¶ 112.) Mr. Pine states that “the expenditure of significant time on any of our contingency cases-including this one-necessarily displaces hourly work we would have otherwise taken.” (Pine Decl., ¶ 25.)

The District asserts that Plaintiff’s counsel’s statements of being precluded from other work are conclusory and “have been found insufficient to support an enhancement for preclusion.” (Opp’n at p. 18:8.) However, the District cites to a nonbinding federal case to support this assertion.

Plaintiff also notes that “the novelty and difficulty of the questions involved” may support a lodestar enhancement, but does not provide any analysis of this factor in the Memorandum of Points and Authorities. (Mot. at p. 19:2-11.)
Lastly, Plaintiff asserts that “[t]he results obtained factor also supports an upwards adjustment,” because “[i]n this many years battle, Mr. Lowery’s counsel on a purely contingent basis fought not only through trial, but also a full appeal and petition to the Supreme Court, only to then have to serially re-litigate after remand the result of the appeal. The end result is an agreement by the LACCD to pay Mr. Lowery more money than he was awarded in the trial and a stipulation that he is the ‘prevailing party’ for purposes of this case.” (Mot. at p. 19:13-19; deRubertis Decl., ¶¶ 82-83.)

The District counters that the “results achieved” factor does not support a lodestar multiplier. The District cites to Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 838, where the Court of Appeal noted that “[t]he ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit. In other words, as stated by a leading treatise, ‘the California cases appear to incorporate the ‘results obtained’ factor into the ‘quality’ factor: i.e., high-quality work may produce greater results in less time than would work of average quality, thus justifying a multiplier.” The District asserts that “Plaintiff received a modest settlement when taking into account that the settlement sum covered roughly 9.5 years of potential back pay claims as well as all other potential economic and non-economic damages. Plaintiff ultimately prevailed on only one of the five causes of action he initially brought, and the success on that claim was limited given the Court of Appeals decision holding that the District properly engaged in the interactive process except with regard to its receipt of Plaintiff’s November 29, 2007 medical documentation.” (Opp’n at p. 19:10-15.)

In addition, the parties note that on May 4, 2012, Plaintiff’s previous motion for attorney’s fees was granted in the amount of $673,564.40. (Smith Decl., ¶ 5, Ex. C, p. 17.) As set forth in the May 4, 2012 Order, the Court applied a multiplier of 1.4. (Ibid.) The District asserts that “the Court of Appeal’s decision reversing the discrimination and failure to accommodate claims was primarily based on the simple fact that, at the time of Plaintiff’s termination, there was no indication that Plaintiff was able to perform the essential functions of the job with or without accommodation…Thus, Plaintiff’s assumption of any multiplier, let alone an increased multiplier, fails to take into account the fact that the Court of Appeals largely undermined the factors considered by the trial court in awarding a multiplier.” (Opp’n at p. 16:25-17:3.) Plaintiff does not appear to address this point in the reply.

Here, Plaintiff’s counsel has attached billing statements to the instant motion detailing the nature of the work performed. (deRubertis Decl., ¶¶ 114, 115, Exs. AA, BB, and CC; Pine Decl., ¶¶ 16, 19, Exs. 1, 4; Lucien Decl., ¶ 27, Ex. A.)

The District asserts that Plaintiff’s lodestar calculations are unreasonable because the lodestar does not distinguish between Plaintiff’s successful cause of action and Plaintiff’s unsuccessful causes of action. The District asserts that “Plaintiff’s counsel would only be entitled to fees for work on one successful cause of action out of five, and even on that cause of action the fees would be subject to further reductions based on Plaintiff’s relatively limited success in achieving his chief objective (reinstatement).” (Opp’n at p. 15:9-12.)

The District asserts that “[i]n FEHA and civil rights actions where a plaintiff succeeds on some claims and not others, courts apply the two-step test outlined in Hensley v. Eckerhart (1983) 461 U.S. 424 (Hensley) to determine how much the lodestar amount should be reduced to reflect the limited success.” (Opp’n at p. 11:11-13.)

In Hensley, the United States Supreme Court considered “whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.” (Hensley, supra, 461 U.S. at p. 426.) The Hensley Court held that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” (Hensley, supra, 461 U.S. at p. 440.)

As set forth above, Plaintiff’s FAC in this matter alleges 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.

The District notes that the Court of Appeal issued an Opinion in this matter on October 24, 2013, as well as an Order Modifying Opinion on November 21, 2013. (Smith Decl., ¶ 2, Ex. A.) The Court of Appeal’s October 24, 2013 Opinion and the Order Modifying Opinion provide, inter alia, “[w]e find the trial court’s decision as to the employer’s failure to engage in a good faith interactive process supported in part, but the decision as to the employee’s claims for wrongful discharge and failure to accommodate unsupported,” and “[w]e will affirm the judgment in part, reverse the judgment in part, and remand the case to the trial court with directions to enter a new judgment reflecting these changes and awarding such damages and/or other remedies to which Lowery may be entitled as a result of the District’s failure to engage in a good faith interactive process after November 29, 2007.” (October 24, 2013 Opinion at p. 2; November 21, 2013 Order Modifying Opinion.)

The District asserts that “Plaintiff’s claim for failure to engage was…based on distinguishable facts and theories from Plaintiff’s failed causes of action for retaliation, failure to prevent discrimination, disability discrimination, and failure to accommodate. For example, the retaliation claim was based on the theory that Plaintiff’ was terminated for filing a workers’ compensation claim. (See Plt. First Amended Complaint, at ¶ 64.). Plaintiff’s claim for failure to engage in the interactive process did not require proof regarding retaliatory motive or that Plaintiff engaged in protected workers’ compensation activities.” (Opp’n at p. 12:6-12.) The District also asserts that “the disability-related claims are distinct causes of action based on distinct facts…” (Opp’n at p. 12:13.)

In the reply, Plaintiff asserts that none of the mandatory predicates for a “limited success” reduction are present here. Both parties cite to Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1310-1311, where the Court of Appeal noted that the Hensley Court “recognize[d] that there is no certain method of determining when claims are related or unrelated, but it instructs the court to inquire whether the different claims for relief … are based on different facts and legal theories. If so, they qualify as unrelated claims. Conversely, related claims will involve a common core of facts or will be based on related legal theories.” (Internal quotations and citations omitted.)

Plaintiff asserts that the unsuccessful claims were not unrelated to the successful claims.

Plaintiff submits another Declaration of David M. deRubertis in support of the reply, who asserts that:

“Mr. Lowery pursued three legal theories at trial: failure to engage in a timely, good faith interactive process; failure to accommodate; and disability discrimination – all of which related both to the removal from his position on October 8, 2007 and the failure to reinstate after November 29, 2007. The successful and unsuccessful claims thus asserted the identical legal theories based on a continuous course of conduct. The only difference between the successful and unsuccessful claims was that they analyzed the identical legal claims from a closely related but not exactly identical moment in time: November 29, 2007 vs. October 8, 2007 – just 52 days apart. Even if the claims relating to the October 8, 2007 removal were not made, the same evidence would have been introduced at trial by the Plaintiff – the events leading to the removal from the job on October 8, 2017 where [sic] part and parcel of the story and background that explained the failure to reinstate in November 2017. And, from a damage perspective, the only difference between the finding that LACCD was liable from October 8, 2017 to the finding that LACCD was liable for failing to reinstate after November 29, 2017 was that by reversing as to the October 8, 2017 removal, the appellate court reduced Mr. Lowery’s economic damages by 7 weeks of pay –an insignificant amount (approximately $10,096.15).” (David M. deRubertis Decl. in Support of Reply, ¶ 10.)[2]

The Court notes that the foregoing evidence was submitted for the first time in connection with the reply, such that the District did not have the opportunity to respond to it.

As to the District’s assertion that reductions are warranted based on “Plaintiff’s relatively limited success in achieving his chief objective (reinstatement),” (Opp’n at p. 15:11-12), Plaintiff responds that Plaintiff’s decision to forego seeking reinstatement and opt for a money settlement instead is not a measure of lack of success. (See David M. deRubertis Decl. in Support of Reply, ¶ 11.) The Court notes that the District has not had the opportunity to address evidence presented by Plaintiff for the first time in the reply in connection with this point.

Lastly, the District asserts that Mr. Lucien’s billing records contain duplicate entries. The District states that such duplicate entries are highlighted for the Court’s reference, but Exhibit I attached to the District’s counsel’s declaration does not contain any highlights. (Smith Decl., ¶ 12, Ex. 1.) It is thus unclear what specific entries the District contends are duplicates.

Based on the foregoing, the Court continues the hearing on the instant motion to ______________,¿ 2023, at 10:00 a.m. in Dept. 50.¿¿¿¿

The District may file and serve a surreply on or before ____________, 2023, with a courtesy copy delivered to Dept. 50.¿Any surreply shall solely address Plaintiff’s new evidence and argument in the reply concerning whether Plaintiff’s unsuccessful causes of action are “related to” Plaintiff’s successful cause of action, and whether Plaintiff achieved only “limited success.” Plaintiff may file and serve a response thereto on or before ____________, 2023, with a courtesy copy delivered to Dept. 50. The parties may not include any argument or evidence on any other issue.¿¿¿

[1]The Court notes that the District filed a sur-reply on August 18, 2022. On October 31, 2022, Plaintiff filed a reply to the District’s sur-reply. The parties do not indicate that the Court authorized such briefing and the Court accordingly disregards it.

[2]Plaintiff also notes that his counsel “determined that Plaintiff should drop certain claims: (1) failure to prevent; and (2) retaliation,” and that such claims “were ultimately dismissed for tactical reasons.” (deRubertis Decl., ¶ 104.)

SCOTT LOWERY, Plaintiff, vs. LOS ANGELES COMMUNITY COLLEGES, et al., Defendants.	Case No.:	BC413753
	Hearing Date:	April 6, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION FOR STATUTORY ATTORNEYS’ FEES

Superior Court of California

County of Los Angeles

Department 50