Judge: Teresa A. Beaudet, Case: BC699489, Date: 2022-10-25 Tentative Ruling

Case Number: BC699489    Hearing Date: October 25, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background   

On March 23, 2018, Plaintiff Candy Lopez (“Lopez”) filed this employment action against Defendants United Parcel Service, Inc. (“UPS”) and Ryan Quon (“Quon”), asserting causes of action for (1) Ralph Civil Rights Act – Civ. Code, §§ 51.7, 52; (2) sexual harassment – Gov. Code, § 12940(j)(1); (3) failure to prevent sexual harassment – Gov. Code, § 12940(k); (4) negligent hiring, supervision or retention; (5) stalking – Civ. Code, § 1708.7; (6) intentional infliction of emotional distress; and (7) injunctive relief. Lopez alleges, among other claims, violations of FEHA stemming from allegations that Quon, Lopez’s supervisor at UPS, sexually harassed her and threatened her with violence.

The action came on for a jury trial on October 13, 2021, continuing through November 23, 2021. On January 25, 2022, a Judgment on the Jury Verdict was entered, providing, inter alia, that “Plaintiff Candy Lopez shall have and recover from Defendant Ryan Quon, $30,000 in noneconomic damages, $1,300 in economic damages, and $10,000 in punitive damages for a total of $41,300.” (Judgment at p. 12:5-7.)

Lopez now moves for an order awarding her attorneys’ fees in the amount of $2,712,069, plus a multiplier of 1.75, for a total fee award of $4,746,120.70 against Quon. Quon opposes.[1]

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, 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, 59 Cal.App.4th 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 Hourly Rate of Counsel

“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.)

Lopez requests a lodestar total of $2,712,069, which includes $1,441,800.00

for work performed by The Gilliland Firm, and $1,270,269 for work performed by The Hanrahan Firm. (Mot at p. 17:23-28; Gilliland Decl., ¶ 5; Hanrahan Decl., ¶¶ 10, 13.) Lopez requests billing rates of $1,200/hour for Mr. Douglas S. Gilliland and $900/hour for Mr. Corey P. Hanrahan. (Gilliland Decl., ¶ 5; Hanrahan Decl., ¶ 10.) Mr. Gilliland and Mr. Hanrahan set forth their background and experience. (Gilliland Decl., ¶¶ 2-3; Hanrahan Decl., ¶¶ 2-6.)

            Quon asserts that Mr. Gilliland does not qualify for the hourly rate requested because he does not have an employment law background. In the motion, Lopez indicates that “Mr. Gilliland does not handle employment cases. So, he does not have a prior fee award history under FEHA. However, he does have substantial experience trying cases.” (Mot. at p. 14:18-19.) However, as Lopez notes, Quon has not submitted any declarations addressing the prevailing market rates, nor has he provided any evidence concerning the asserted excessiveness of Mr. Gilliland’s rate. Quon does not appear to dispute Mr. Hanrahan’s requested rate.

Based on the foregoing, the Court finds that Mr. Gilliland and Mr. Hanrahan’s hourly rates are reasonable.

Reasonableness of the Requested Fees

“[T]he court’s discretion in awarding attorney fees is … to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 (Horsford).) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, footnote 21.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford, supra, at p. 396.)

Here, Lopez’s counsel have provided billing statements detailing the nature of the work performed. (Gilliland Decl., ¶ 5, Exhibit to Gilliand Decl.; Hanrahan Decl., ¶ 13, Ex A.) From January 2018 through the present, The Gilliland Firm billed 1,201.50 hours for services rendered. (Gilliland Decl., ¶ 5, Exhibit to Gilliand Decl.) From January 2018 through the present, The Hanrahan Firm billed 1,411.41 hours for services rendered. (Hanrahan Decl., ¶ 13, Exs. A-B.) 

In the opposition, Quon first asserts that “the court should find that the hours expended by Plaintiff’s counsel were unreasonable because the only action which lead to Plaintiff achieving a favorable outcome was to confusingly draft the jury instruction on sexual harassment.” (Opp’n at p. 1:23-27.) Quon contends that the Court should “deny or, in the alternative, reduce Plaintiff’s fee and cost request to the time spent drafting the instruction on jury instruction.” (Opp’n at p. 8:4-7.) The Court does not find this argument persuasive or supported by any evidence. In addition, in the reply, Lopez asserts that the jury instruction on sexual harassment was taken directly from the Judicial Council of California Civil Jury Instructions (CACI). (Reply at p. 2:2-4.) 

Quon also cites to Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989, where the California Supreme Court noted that “[a]lthough fees are not reduced when a plaintiff prevails on only one of several factually related and closely intertwined claims, under state law as well as federal law, a reduced fee award is appropriate when a claimant achieves only limited success.” (Internal quotations and citations omitted.) Quon asserts that here, Lopez had only limited success, “[a]s the jury found for Plaintiff on only one of seven distinctly presented claims.” (Opp’n at p. 4:1-2.)

Lopez counters that her various claims involved a common core of facts and were based on related, intertwined, legal theories, such that it would be improper to apportion attorneys’ fees between distinct causes of action. In the motion, Lopez notes that “[a]pportionment is not required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney’s time into compensable and noncompensable units.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159.) In addition, “[w]here a lawsuit consists of related claims, and the plaintiff has won substantial relief, a trial court has discretion to award all or substantially all of the plaintiff’s fees even if the court did not adopt each contention raised. Attorney’s fees need not be apportioned between distinct causes of action where plaintiff’s various claims involve a common core of facts or are based on related legal theories.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251 (internal quotations and citations omitted).) As Lopez notes, Quon does not set forth any facts to support any claim that Lopez’s unsuccessful claims were unrelated to her successful ones. Quon does not discuss Lopez’s separate causes of action in the opposition or provide any analysis as to why they do not involve a common core of facts.  

In addition, Quon asserts that Lopez’s verdict on the sexual harassment claim does not appear to have any broad public impact, or result in significant benefit to anyone other than Lopez. The Chavez Court found that “[w]hen using the lodestar method to calculate attorney fees under the FEHA, the ultimate goal is to determine a reasonable attorney fee, and not to encourage unnecessary litigation of claims that serve no public purpose either because they have no broad public impact or because they are factually or legally weak.” (Chavez v. City of Los Angeles, supra, 47 Cal.4th at p. 985 (internal quotations omitted).) The Court notes that Quon does not appear to argue that Lopez’s claims are factually or legally weak.

In addition, Quon asserts that the result in this case does not justify Lopez’s counsel’s fees. However, Lopez cites to Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 426-427, where the Court of Appeal found that “[t]he courts have often expressed the principle that a slight monetary recovery will not control assessment of the appropriate amount of attorney fees where a constitutional right is vindicated or a significant public benefit conferred. A court should not reduce the lodestar merely because the prevailing party did not receive the type of relief that it requested. This is especially true in civil rights cases.” (Internal quotations and citations omitted.) 

Lastly, Quon asserts that “the analysis supports that Plaintiff’s counsel overbilled for purposes of the instant cost and fee Motion.” (Opp’n at p. 7:24-25.) However, no further explanation is provided on this point. Quon does not identify any specific billing entries that are purportedly excessive. 

Lodestar Multiplier

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.)

Here, Lopez argues that a 1.75 lodestar multiplier is appropriate given the contingent nature of the fee award; the extent to which the nature of the litigation precluded other employment by the attorneys; the skill displayed in presenting the issues; and the difficulty of the questions involved. Quon counters that a multiplier should not be applied.    

As to the contingency fee nature of the case, Lopez cites to Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138, in which 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.” Lopez asserts that her counsel prosecuted the entire case on a contingent basis. As set forth above, the instant case was filed in March 2018. Lopez asserts that “almost four years is a significant amount of time to wait to be awarded fees for two solo practitioners and supports a modest multiplier of 1.5.” (Mot. at p. 19:6-8.)[2] However, the Court notes that the Ketchum Court also provides that:

“[o]f course, the 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…We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate. Indeed, the reasonable hourly rate [used to calculate the lodestar] is the product of a multiplicity of factors ... the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case. Thus, a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable. (Id. at pp. 1138–1139 (internal quotations and citations omitted, emphasis in original).)

Lopez also asserts that “due to the challenging, costly, and thereby risky nature of this case, this litigation consumed a substantial portion of Ms. Lopez’s counsel’s time.” (Mot. at p. 20:1-2.) Mr. Hanrahan states that as a solo practitioner, the time and money that he spent on Lopez’s case precluded him from accepting other cases. (Hanrahan Decl., ¶ 13.) The Court notes that Mr. Gilliland does not provide any evidence indicating that his work on the instant case precluded him from accepting other work. 

            In addition, Lopez asserts that the skill displayed by counsel supports a multiplier. Specifically, Lopez argues that her counsel “succeeded in obtaining an award for Ms. Lopez, in a case that depended upon testimony from many adverse witnesses, including testimony from Defendant UPS’s own witnesses.” (Mot. at p. 20:16-18.) The Court does not find that Lopez has presented evidence demonstrating that the skill displayed in presenting the questions at issue warrants a multiplier.

            Lastly, Lopez asserts that the difficulty of the questions presented warrants a multiplier. Lopez asserts that “the massive amounts of social media, including Instagram and Facebook accounts that were being used anonymously by Mr. QUON on [sic] harass Ms. Lopez had to be examined and foundations needed to be laid for [sic] account where Instagram and Facebook would not respond to subpoenas and Mr. QUON was denying me [sic] was responsible for the accounts. It was further made difficult by Mr. QUON essentially denying all plaintiff’s allegations which required plaintiff to prove each fact…” (Gilliand Decl., ¶ 6.) The Court does not find that Lopez has shown that the difficulty of the questions presented warrants a multiplier here. 

Based on the foregoing, the Court declines to apply the requested $2,034,051.70 multiplier to the lodestar amount. Lopez has not shown that there was anything novel or unusually difficult about this case or the questions it involved, nor is the success achieved by Lopez’s counsel exceptional. In addition, because the quality of representation and the degree of skill exercised by Lopez’s counsel are already factored into the lodestar, it would be unreasonable to award an enhancement. (See Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1333 (“Where, as here, the court determines that the lodestar itself constitutes a reasonable fee for the action at issue, no enhancement is warranted.”).)  

            Conclusion

            Based on the foregoing, Lopez’s motion is granted in part. The Court orders that Lopez is entitled to recover $2,712,069 in attorney’s fees from Quon.

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Lopez is ordered to give notice of this Order.

DATED: October 25, 2022                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court