Judge Theresa M. Traber, Case BC724401 2023-05-25 Tentative Ruling

Judge: Theresa M. Traber, Case: BC724401, Date: 2023-05-25 Tentative Ruling

Case Number: BC724401 Hearing Date: May 25, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: May 25, 2023 JUDGMENT: December 7, 2022

CASE: Sabrena Odom v. Los Angeles Community College Dist. et al.

CASE NO.: BC724401

MOTION FOR ATTORNEY’S FEES (x2)

MOVING PARTY: (1)(2) Plaintiff Sabrena Odom

RESPONDING PARTY(S): (1)(2) Defendants Los Angeles Community College District, Howard Irvin

CASE HISTORY:

· 10/04/18: Complaint filed.

· 12/07/22: Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment discrimination action. Plaintiff alleged that she was sexually harassed by Defendant Irvin, and that she was retaliated against by her employer for complaining about the harassment.

Plaintiff moves for attorney’s fees as the prevailing party in this action.

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees for the Law Offices of Maryann P. Gallagher is GRANTED in the amount of $841,890.

Plaintiff’s Motion for Attorney’s Fees for the J. Wright Law Group, P.C. is CONTINUED to June 23, 2023, at 9:00 AM. Plaintiff is ordered to correct her service list and to serve Defendants and provide electronic courtesy copies on or before May 30, 2023.

Any opposition or reply briefing shall be served and filed per code.

DISCUSSION:

Motion for Attorney’s Fees (Law Offices of Maryann P. Gallagher)

Plaintiff moves for attorney’s fees on behalf of her counsel, the Law Offices of Maryann P. Gallagher, in the amount of $845,130.

Entitlement to Fees

Plaintiff contends that she is entitled to attorney’s fees as the prevailing party on her Fair Employment and Housing claims in this action.

A party who prevails on claims brought under the Fair Employment and Housing Act is entitled to reasonable attorney’s fees and costs. (Gov. Code § 12965(b).)

Here, at the close of a three-week trial, the jury found in favor of Plaintiff and against Defendants on her Sexual Harassment, Failure to Investigate and Prevent Sexual Harassment, Retaliation, and Negligent Hiring, Supervision, and Retention causes of action. (October 21, 2022 Minute Order.) Defendants subsequently brought motions for a new trial and judgment notwithstanding the verdict, both of which were denied with the rulings on appeal. However, Defendants do not dispute that Plaintiff is the prevailing party for the purposes of the Fair Employment and Housing Act.

The Court therefore finds that Plaintiff is entitled to her reasonable attorney’s fees as the prevailing party in this action.

Special Circumstances

In opposition, Defendants argued that special circumstances existed that would render an award of attorney’s fees unjust, contending that Judge Draper improperly ruled on Defendants’ Motion for Judgment Notwithstanding the Verdict and for New Trial before voluntarily recusing himself. While Defendants cited Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 416-17, in support of the general principle that a court may decline to award attorney’s fees to a prevailing party when special circumstances would render an award unjust, they offer no legal authority demonstrating that the procedural history in this case warrants such a conclusion. In light of the extremely serious factual accusations leveled by Defendants, the Court ordered supplemental briefing on this issue. Defendants were ordered to file a supplemental opposition stating their legal authority for this position by May 12, 2023. (April 25, 2023 Minute Order.) Defendants’ supplemental brief was never filed, and Defendants have offered no explanation for their failure to do so.

The Court extended an opportunity for Defendants to justify their position out of respect for the gravity of the charges leveled against Judge Draper. Defendants have not treated that opportunity with the same respect. Defendants have therefore failed to justify their objection that special circumstances exist to support the denial of a fee award.

Reasonableness of Fees

Plaintiff requests attorney’s fees in the amount of $845,130.

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. Discrepancies in Amount Requested

As a threshold matter, Plaintiff’s Notice of Motion provides a breakdown of the hourly rates, hours incurred, and total fees sought for each attorney and co-counsel employed by the Law Offices of Maryann P. Gallagher. (Notice of Motion p. 2.) The Court observes, however, that the Notice of Motion is riven with typographical errors. Specifically, the total entry for Viridiana Aceves states that it only seeks “$134.080,” when, based on the hours incurred and the displayed hourly rate, this amount should properly be $134,080. Similarly, the entry for Susan Beck has misplaced the decimal point entirely, listing the amount as $1.5 million when, to maintain the requested total of $845,130, it should properly be listed as $15,000. (Id.) In fact, that missing decimal point appears to have migrated to the entry for Sharon Ramirez. That said, as the nature of these errors and the proper amount requested is apparent to the Court from Plaintiff’s papers, the Court finds that these errors in the Notice of Motion are not prejudicial. The Court will therefore construe the motion as seeking the amounts as described above.

2. Fees Sought

Plaintiff seeks a total of $845,130 in attorney’s fees on this motion. Plaintiff bases this request on 828.7 hours of attorney time incurred by Maryann Gallagher at a rate of $800 per hour, 335.2 hours of attorney time incurred by Viridiana Aceves at $400 per hour, 99.5 hours of attorney time incurred by Armand Jafaari at $300 per hour, a block bill of $15,000 for Susan Beck, 9.3 hours billed by Sharon Ramirez at $300 per hour, and 1.5 hours billed by Jeremy McNutt at $300 per hour. (Notice of Motion p. 2.)

Although invoices and itemized lists of attorney time billed in this case were not initially provided, Plaintiff lodged confidential billing records with the Court on April 13, 2023. (April 13, 2023 Notice of Lodgment.) The parties subsequently stipulated to permit Defendants to file a response to the lodged records. (April 17, 2023 Stipulation and Order.) The Court construes this response as part of Defendants’ initial opposition and will address it infra.

Plaintiff’s counsel Maryann Gallagher provided a declaration with this motion attesting to her training, skills, and experience, as well as her hourly rate of $800 per hour, and attaching declarations from other attorneys showing that her hourly rate is reasonable based on her experience and skills. (See generally Declaration of Maryann P. Gallagher ISO Mot., Exh. 1-3.) Attorney Gallagher also attests to the skill and experience of her co-counsel, Viridiana Aceves, whose hourly rate is $400 per hour, and likewise for associate Armand Jafaari, whose hourly rate is $300 per hour. (Id. ¶¶ 29-30.) In addition to describing Susan Beck as “an appellate specialist with 17 years of experience” who “provided assistance [to Ms. Gallagher] post trial,” Plaintiff also submits Ms. Beck’s billing records describing the work she performed and the number of hours spent on each task. (Gallagher Decl. ¶¶ 27-28, Exh. 4.) In contrast, Plaintiff provides no explanation of the experience or credentials of Sharon Ramirez or Jeremy McNutt, who are listed on the Notice of Motion as having incurred a combined total of $3,240 in fees.

With respect to Ms. Ramirez and Mr. McNutt, the Court finds that Plaintiff has not justified the reasonableness of the fees requested pertaining to their time billed, as Plaintiff has provided no evidence supporting their level of experience or the reasonableness of their rates. The Court, thus, reduces the fee award by the $3,240 sought for their fees. As to the remainder of the fees sought, the Court finds that Plaintiff has adequately demonstrated the skills, training, and experience of her counsel. As Defendants challenge the fees billed by Attorneys Gallagher, Aceves, and Jafaari, the Court will address Defendants’ opposition below.

3. Defendants’ Opposition

Defendants contend that Plaintiff’s fee request is unreasonably inflated and contains improper block billing.

With respect to the claim that Plaintiff’s fee requests are unreasonably inflated, Defendants point to six instances where they contend Attorney Gallagher—who charges $800 per hour—was performing work that could have been done by a paralegal or associate for considerably less. Defendants’ conclusory assertions that these entries represent simple work that does not require the attention of a senior attorney is not persuasive. As one example, Attorney Gallagher’s time drafting deposition notices was not mere paralegal work when she was drafting the topics for a PMQ deposition and deposition notices that included accompanying requests for production on documents in connection the depositions of a named defendant and other key witnesses. (Notice of Lodging, pp. 2-5.) Nor can the Court say that lead trial counsel’s final review of key trial documents and exhibits is time that should be done only by less knowledgeable paralegal staff. The Court declines to reduce Plaintiff’s fee request for the time spent by her lead counsel to ensure an efficient trial and complete trial documents.

Similarly unpersuasive is Defendants’ argument that Plaintiff’s counsel’s use of block billing is so egregious, or the entries identified so vague, that a reduction of the fee award is appropriate. Leaving aside Defendants’ frequent incorrect citations to the confidential billing records, the entries for depositions and hearings which form the thrust of Defendants’ objections list the time when those hearings were scheduled to start and end, and the actual start and end time for the depositions based on the record. (See, e.g., NOL p. 5 12/5/2019.) The listed times in the entry descriptions do not account for travel time, waiting periods, or immediate preparation or cleanup which would necessarily be included in such a time entry, and thus would be part of the actual billed time incurred. Further, a billing of 11.75 in one day for “pre-trial” tasks on the eve of trial is a reasonable notation, since all trial counsel understand the nature and range of work that must be done to prepare for a lengthy jury trial. Similarly, a nine-hour entry for preparing and taking a deposition lasting more than six hours is reasonable in that the time for preparation would necessarily be in addition to the time spent interrogating the deponent. The Court does not find these entries indicative of improper billing practices such that any reduction in the fees is warranted.

Conclusion

Accordingly, Plaintiff’s Motion for Attorney’s Fees for the Law Offices of Maryann P. Gallagher is GRANTED in the amount of $841,890, based on Plaintiff’s showing that her attorneys’ rates are reasonable, that the fees were reasonably spent, and that they resulted in substantial success on the merits..

Motion for Attorney’s Fees (J. Wright Law Group, P.C.)

Plaintiff also moves for attorney’s fees on behalf of her counsel, J. Wright Law Group, P.C.

Code of Civil Procedure section 1005(b) requires that any motion be noticed a minimum of 16 court days before the motion is scheduled to be heard, plus additional days depending upon the manner of service. (Code Civ. Proc. §§ 1005(b); 1010.6, 1013.)

Plaintiff’s proof of service states that this motion was served on Defendants’ counsel on April 24, 2023 by email, exactly 18 court days before the original May 18, 2023 hearing date, as required for electronic service. (Code Civ. Proc. §§ 1005(b), 1010.6.) No opposition was initially filed. However, Defendants objected to this motion on May 16, 2023 on the basis that Defendants’ counsel was not properly served. Defendants contend that the Proof of Service misspelled the name of Defendants’ counsel’s firm, Meyers Nave (misspelled as “Myers Nave”) both in the name of the firm and in the email addresses provided. (Declaration of Janice P. Brown ISO Objection ¶ 2.) Defendants state that Meyers Nave, who is now Defendants’ sole remaining legal counsel, never received the moving papers and only received notice on May 10, 2023 via Plaintiff’s Notice of Non-Opposition. (Id. ¶¶ 3-5.) Defendants were therefore deprived of an opportunity to prepare and serve an opposition within 9 court days of the initial May 18, 2023 hearing for this motion. (See Code Civ. Proc .§ 1005(b).) Plaintiff has not responded to this argument in reply.

Defendants have demonstrated that they did not receive proper notice of the hearing as initially scheduled. Although the Court, on its own motion, continued the hearing on this matter to May 25, 2023, the continuance was not of sufficient length to cure the defect in service. In the interest of a full resolution of this issue on its merits, the Court will continue this motion for approximately one month to permit proper service of the papers and responsive briefing per code.

Conclusion

Accordingly, Plaintiff’s Motion for Attorney’s Fees on behalf of the J. Wright Law Group, P.C. is CONTINUED to June 23, 2023, at 9:00 AM. Plaintiff is ordered to correct her service list and to serve Defendants and provide electronic courtesy copies on or before May 30, 2023.

Any opposition or reply briefing shall be served and filed per code.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Attorney’s Fees for the Law Offices of Maryann P. Gallagher is GRANTED in the amount of $841,890.

Any opposition or reply briefing shall be served and filed per code.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: May 25, 2023 ___________________________________

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.