Judge Theresa M. Traber, Case Number: 21STCV22706, Date: 2025-01-08 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV22706, Date: 2025-01-08 Tentative Ruling

Case Number: 21STCV22706 Hearing Date: January 8, 2025 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 8, 2025 VERDICT: September 26, 2024

CASE: Nada Shaath v. Los Angeles Unified School Dist.

CASE NO.: 21STCV22706

(1) MOTION FOR ATTORNEY’S FEES

(2) MOTION TO TAX COSTS

MOVING PARTY: (1) Plaintiff Nada Shaath; (2) Defendant Los Angeles Unified School District

RESPONDING PARTY(S): (1) Defendant Los Angeles Unified School District; (2) Plaintiff Nada Shaath

CASE HISTORY:

· 06/07/21: Complaint filed.

· 09/25/23: First Amended Complaint filed.

· 09/26/24: Special Verdict entered following jury trial.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for employment discrimination, harassment, and retaliation. Plaintiff alleges that Defendant discriminated against Plaintiff based on her race, religion, and national origin and retaliated against her for complaining about discrimination and for reporting unlawful activity, and that Defendant failed to prevent others from discriminating against and harassing her.

Plaintiff moves for an award of attorney’s fees in the amount of $871,914.75 following a special verdict in her favor. Defendant moves to tax Plaintiff’s Memorandum of Costs.

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $761,665, reflecting the fees actually incurred in this action.

Defendant’s Motion to Tax Costs is GRANTED IN PART, taxing a total of $6,094.88 in costs. Plaintiff is, thus, entitled to recover $23,449.42 in costs.

DISCUSSION:

Motion for Attorney’s Fees

Plaintiff moves for an award of attorney’s fees in the amount of $871,914.75, based on $761,665.00 in actual fees incurred with a 1.15x multiplier, following a special verdict in her favor.

Entitlement to Fees

Plaintiff moves for attorney’s fees pursuant to Labor Code section 1102.5. Subdivision (j) of this statute authorizes a plaintiff who brings a successful action for violation of section 1102.5 to reasonable attorney’s fees. (Labor Code § 1102.5(j).) Here, Plaintiff’s first cause of action in her First Amended Complaint alleged that Defendant violated subdivision (b) of section 1102.5 by retaliating against her for complaining of unlawful conduct. (FAC ¶¶ 41-50.) The jury found in favor of Plaintiff on that cause of action. (See Special Verdict entered September 26, 2024.)

Defendant, in opposition, argues that Plaintiff is not entitled to attorney’s fees because this motion was brought before entry of judgment and litigation of any post-trial motions and is therefore premature. Defendant cites no authority supporting the position that a fee motion should be denied on this basis. To the contrary, related authority suggests that “premature” claims for costs are nevertheless valid. (Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 566 [premature filing of cost bill not a nullity]; Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 528 [same].) As attorney’s fees are an element of costs (see Parker, supra, 44 Cal.App.3d at 566), these authorities are strongly persuasive, even if not controlling. The Court therefore finds that Plaintiff is, based on the verdict as it currently stands, entitled to an award of attorney’s fees.

Reasonableness of Fees

Plaintiff moves for an award of attorney’s fees in the amount of $871,914.75, based on $761,665.00 in actual fees incurred with a 1.15x multiplier.

Reasonable attorney’s fees are allowable costs when authorized by contract, statute, or law. (Code Civ. Proc § 1033.5(a)(10), (c)(5)(B).) In actions that are based on a contract, “where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract… shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civil Code § 1717(a) [emphasis added].) A recovery of attorney’s fees is authorized even in noncontractual or tort actions if the contractual provision for fee recovery is worded broadly enough. (See Code Civ. Proc § 10211; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993 [agreement to award fees based on outcome of “any dispute” encompasses all claims, “whether in contract, tort or otherwise]; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1076; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160.)

Reasonable attorney’s fees shall be fixed by the Court and shall be an element of the costs of suit. (Code Civ. Proc. § 1033.5(c)(5)(B).) Reasonable attorney’s fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[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….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

1. Base Fee Request

Plaintiff requests an award of the lodestar fees incurred in connection with her successful claims in the amount of $761,665. This request is based on 306.4 hours of attorney time incurred by Timothy E. Kearns at $850 per hour, and 668.3 hours of attorney time by Mary Jean Sumell at $750 per hour. (Declaration of Timothy E. Kearns ISO Mot. ¶ 13; Declaration of Mary Jean Sumell ¶ 16; Plaintiffs’ Exhs. B-C.) Both attorneys testified to their training, experience, and hourly rate. (Kearns Decl. ¶ 3; Sumell Decl. ¶ 3.) Moreover, Plaintiff has provided itemized billing records with dates, task descriptions, and total fees and hours billed. (Plaintiffs’ Exhs. B-C.) Plaintiff freely concedes that this request encompasses the entirety of the fees incurred in connection with this action, arguing that she is entitled to recover all fees because all causes of action were so intertwined as to render apportionment between successful and unsuccessful claims inappropriate. (See, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 431.)

Defendant, in opposing this motion, first argues that Plaintiff’s whistleblower retaliation claim was not intertwined with her other unsuccessful claims because Labor Code section 1102.5 requires proof of facts relating to a disclosure of a violation of law. (See Labor Code section 1102.5.) Although technically true, Defendant’s argument ignores that those disclosures directly pertained to conduct which Plaintiff alleged as constituting discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act in her other causes of action. (See FAC ¶¶ 17-18; 21-31.) In that context, the Court concurs with the Plaintiff that the causes of action were so intertwined as to preclude apportionment of fees between successful and unsuccessful claims.

Defendant next contends that the total number of hours claimed is excessive because Plaintiff’s fee requests include block-billing entries which Defendant considers vague and duplicative. Defendant identifies three entries from Attorney Sumell’s billing records which appear to conflate trial and non-trial activities on September 10, 2024, whereas Attorney Kearns’s corresponding records do not reflect any non-trial work performed on that date. (See Plaintiff’s Exh. B; C.) The Court does not share Defendant’s view of the billing records. With respect to the three entries identified, the first entry billed 9 hours for “round trip travel for trial, day 1 (total travel time both ways); attend trial.” The second and third entries, which are both listed “post trial meeting with client and co-counsel” merely list the subjects which were discussed in those meetings, including the commencement of jury selection, which Defendant misconstrues as referencing the actual jury selection process. Moreover, Plaintiff’s counsel states in reply under penalty of perjury that the first “post-trial meeting” was actually a mis-reported pre-trial meeting. (Supplemental Declaration of Mary Jean Sumell ISO Mot. ¶ 2.) Further, the Court does not consider the omission of these meetings from Attorney Kearns’s billing to be indicative of some fault in the fee request. On the contrary, it is evidence that Plaintiff’s counsel avoided duplicative billing and inflation of the fees by only billing once for meetings involving both attorneys, and only doing so at Attorney Sumell’s lower hourly rate.

Next, Defendant contends that the parties engaged in additional discovery following the May 30, 2024 Final Status Conference relating to “me too” witnesses identified by Plaintiff. (Declaration of Alison Beanum ISO Opp. ¶ 4.) According to Defendant, none of these witnesses were able to offer relevant testimony and had no impact on the ultimate outcome, and therefore Plaintiff should not be awarded fees pertaining to this discovery. Defendant does not identify any particular entries associated with this discovery. Moreover, the mere fact that such discovery, even at the eve of trial, failed to produce new evidence does not establish that the work relating to that discovery was unnecessary, dilatory, or duplicative.

Finally, Defendant complains that the hourly rates of Plaintiff’s counsel are excessive because, by their own admission, their recent cases awarded them fees at lower hourly rates. For example, Attorney Kearns, who bills $850 per hour in this action, states that he received a $700 hourly rate in a fee award in a 2020 employment case. (Kearns Decl. ¶ 7.) Similarly, Attorney Sumell, who billed $750 per hour in this action, was awarded $600 in a 2022 employment case. (Sumell Decl. ¶ 11.) Defendant argues that the increase in these respective fee awards is greater than what can be accounted for by adjustment for inflation, and therefore that the higher rates in this action are unwarranted. The Court disagrees with Defendant’s conclusion. Although inflation may not account for these increases over such a short period of time, Plaintiff’s counsel has necessarily gained greater experience because of the passage of time. Accounting for the commensurate increase in experience, the Court is not prepared to say that the hourly rates requested by Plaintiff’s counsel in this action are excessive.

The Court therefore declines to adjust the base fees requested by Plaintiff’s counsel.

2. Multiplier

Plaintiff also requests a 1.15x multiplier, equivalent to an additional award of $114,249.75 in fees. Plaintiff contends that this multiplier is reasonable considering the contingent nature of this action, Plaintiff’s counsel’s experience and knowledge, the difficulty of this litigation, and the favorable result achieved for Plaintiff. Multipliers for successful representation on a contingency basis have frequently been awarded. (See, e.g., Santana v. FCA US LLC (2020) 56 Cal.App.5th 334, 352.) Here, however, the difficulty of the litigation, the contingent nature of the action, and the experience and knowledge of Plaintiff’s counsel are all accounted for in the high hourly rates sought. Awarding a multiplier on this basis would therefore constitute an inappropriate windfall for Plaintiff’s counsel. The Court thus declines to award a fee multiplier in this action.

Conclusion

Accordingly, Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $761,665, reflecting the fees actually incurred in this action.

Motion to Tax Costs

Defendant moves to tax Plaintiff’s memorandum of costs.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc. §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timing of Motion

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail or email, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) Here, the Memorandum of Costs was served and filed on November 5, 2024. This motion was served on November 20, 2024, exactly 15 days later. This motion is therefore timely.

Premature Memorandum of Costs

Defendant first moves to strike the entire memorandum of costs on the grounds that the memorandum was prematurely filed. To the contrary, “premature” claims for costs are nevertheless valid. (Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 566 [premature filing of cost bill not a nullity]; Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 528 [same].) The Court therefore refuses to strike the entire memorandum of costs on this basis.

Challenges to Specific Costs

Defendant also challenges select costs claimed in the Memorandum of Costs as improper. Specifically, Defendant challenges Plaintiff’s request for filing fees of $49.53 (Item 1); deposition costs of $3,365.06 (Item 4); service of process costs of $711.25 (Item 5); witness fees of $140.00 (Item 8); transcript costs of $2,734.45 (Item 9); and mileage and parking costs totaling $1,551.23 (Attachment).

1. Filing Fees (Item 1)

Defendant first challenges Plaintiff’s request for filing fees in the amount of $49.53 because they are actually “attorney service” fees, which Defendant contends are not allowable by section 1033.5. Defendant contends that Bell v. Vista Unified School District states that “attorney service” charges are not allowable costs, but close reading of that authority reveals that the Court of Appeal was merely reciting an argument offered by one of the parties, not reaching a conclusion to that effect. (Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672, 691-92.) The Court of Appeal’s only statement on that issue was the straightforward and obvious conclusion that Code of Civil Procedure section 1033.5 governs the costs which may or may not be recovered in a civil action. (Id.) The Court therefore finds that Defendant has failed to properly object to this cost item.

2. Deposition Costs (Item 4)

Defendant next challenges Plaintiff’s request for deposition costs in the amount of $3,365.06. Defendant asserts that Plaintiff’s request for transcription fees and transcription costs are not “accurately reflected,” on the grounds that Defendant, not Plaintiff, paid for the transcribing costs associated with Plaintiff’s deposition. (Item 4(d); Declaration of Alison Beanum ISO Mot. ¶ 2.) Plaintiff, in response, asserts that she paid the costs for preparation of a transcript of her deposition, but offers no evidence of that contention. The Court therefore finds that Plaintiff has not justified this cost item and that it must therefore be taxed in the amount of $1,235.

Defendant also contends that Plaintiff’s request for $1,182.90 in connection with the deposition of Dr. Dylan Harwood is improper because Defendant cannot determine whether the costs claimed are for Dr. Harwood’s expert fees, rather than for deposition transcript costs. This contention is specious. The memorandum of costs—which is presumptively correct—states that this cost item is solely transcription costs. (Item 4(c).) The Court therefore does not find that Defendant has placed this cost item at issue.

3. Service of Process Fees (Item 5)

Defendant also challenges Plaintiff’s request for service of process costs in the amount of $711.25. Defendant first contends that all service costs must be reduced to a maximum of $50 under Code of Civil Procedure section 1033.5(a)(4)(D). This provision limits the maximum cost award for service of process fees to the lesser of the statutory limit for service by a public officer or the amount actually incurred. (Code Civ. Proc. § 1033.5(a); Gov. Code §§ 26721, 26720.9.) However, that restriction only applies when service is made by a means other than (a) a public officer; (b) a registered process server; or (c) service by publication. (Code Civ. Proc. § 1033.5(a)(4).) Defendant’s sweeping assertion is contrary to the plain language of this statute.

Defendant also challenges five trial subpoenas set forth in the Attachment as improper cost charges because Plaintiff has not specified the manner of service of these subpoenas. Where this information is not provided, the Court cannot determine the propriety of the cost items from the face of the memorandum. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) Plaintiff fails to address this objection beyond a statement that Mohcine Ziaid and Baher Azer were avoiding service. Plaintiff has therefore failed to justify these cost items. The Court thus finds that Item 5 should be taxed in the amount of $434.20.

Finally, Defendant challenges Plaintiff’s cost request for “courtesy copies” as an improper request for postage costs. Postage charges, as Defendant states, are not allowable under Code of Civil Procedure section 1033.5(b)(3). However, Plaintiff states in opposition that these were attorney service costs associated with the filing and lodging of courtesy copies with the Court and has provided the invoices for these expenses. Declaration of Timothy E. Kearns ISO Opp. Exhs. 1-2.) The Court therefore finds that these items are accounted for as courtesy copy costs, not postage fees, and are reasonably necessary to the litigation. The Court therefore declines to tax this item.

4. Witness Fees (Item 8)

Defendant next challenges Plaintiff’s request for witness fees in the amount of $140 on the grounds that the witnesses to whom this item pertains, Dalys Stewart, Eva Arrechiga, and Lydia Acosta-Stephens, did not demand any fees. (See Beanum Decl. ¶ 6.) A party only becomes liable for a witness’s fee—i.e., the party only incurs that fee—when the witness demands the fee. (Code Civ. Proc. §§ 1033.5(a)(7); 1987(a); Gov. Code §§ 68093, 68097.) Plaintiff, in response, contends that this request is proper, citing Guillemin v. Stein in support for the position that costs are allowable if incurred, even if not paid. However, in Guillemin, the Court of Appeal interpreted the governing statutes for filing fees to create a debt which, in the context of a public agency’s exemption from filing fee requirements, simply goes unpaid. (Guillemin v. Stein (2002) 104 Cal.App.4^th 156, 164.) Here, however, there is nothing to indicate that any such debt was created, as none of the witnesses demanded any witness fees. The Court therefore finds that this cost item is not justified and must be taxed in the amount of $140.

5. Transcript Costs (Item 9)

Defendant next challenges Plaintiff’s request for $2,734.45 in trial transcripts on the grounds that these are trial transcripts not ordered by the Court, which are expressly excluded under section 1033.5(b)(5). At the outset, the Memorandum of Costs (Summary) lists this item under Item 9 for “Court-ordered transcripts.” (Memo p.1 Item 9.) However, the Worksheet lists this item as “Steno Court Reporting Trial Transcr” under Item 12 for court reporter fees.” (Id. p.5 Item 12.) Trial transcripts and court reporter fees, though often conflated, are separate expenses. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58-59.) Here, however, Plaintiff’s opposition expressly admits that these costs are for trial transcripts, and not for the cost of paying the court reporter. (Kearns Decl. ¶ 4.) As no transcripts were ordered by the Court, this admission is fatal. The Court therefore finds that Item 9 must be taxed in the amount of $2,734.45.

6. Mileage and Parking (Attachment)

Defendant’s final challenge is to Plaintiff’s request for $971.23 in Mileage costs and $580.00 in “parking” (Attachment lines 28-29.) Routine expenses for local travel, other than to attend depositions, are not reasonably necessary to the conduct of litigation. (Ladas v. California State Auto Ass’n. (1993) 19 Cal.App.4th 761, 775-76; Code Civ. Proc. § 1033.5(a)(3)(c).) As Defendant states, the cost memorandum provides no details which would permit the Court to evaluate the propriety of these costs. Moreover, Plaintiff offers no elaboration in opposition beyond the bare assertion that these costs were “necessary expenses” and fails to reckon with the contrary statement in Ladas. The Court therefore finds that these cost items must be taxed in the total amount of $1,551.23.

Conclusion

Accordingly, Defendant’s Motion to Tax Costs is GRANTED IN PART, taxing a total of $6,094.88 in costs, as described above.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Attorney’s Fees is GRANTED in the amount of $761,665, reflecting the fees actually incurred in this action.

Defendant’s Motion to Tax Costs is GRANTED IN PART, taxing a total of $6,094.88 in costs, as described above. Plaintiff is, thus, entitled to recover $23,449.42 in costs.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: January 8, 2025 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.