Judge Thomas D. Long, Case 20STCV13066 2023-05-09 Tentative Ruling

On September 21, 2022, a jury returned a verdict in favor of Plaintiff Hector Carreon and against Defendant U.S. Foodservice, Inc. On December 2, 2022, the Court entered judgment on the verdict.

On December 19, 2022, Plaintiff filed a verified memorandum of costs, seeking $55,132.80 in costs. On January 5, 2023, Defendant filed a motion to tax costs.

On January 10, 2023, Plaintiff filed a motion for attorney fees, seeking $1,292,197.20 in attorney fees.

On February 9, 2023, the Court granted in part Defendant’s motion for judgment notwithstanding the verdict and ordered that the judgment be amended to remove the $1 million punitive damages award. An amended judgment issued on March 10, 2023.

In a FEHA action, a prevailing plaintiff may recover reasonable attorney fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (c)(6).)

“A ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486 (Adams).) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699 (Oak Grove).)

In response to Defendant’s motion to tax costs, Plaintiff’s opposition conceded numerous costs. These concessions cast doubt on the accuracy and propriety of the costs originally claimed, and they have caused the Court to more carefully scrutinize the items in the Memorandum of Costs.

Plaintiff identified $461.70 as the cost for filing his Complaint, but the filing fee is actually $435.00 ($26.70 less than sought). Plaintiff explains that the discrepancy is due to the additional fees for a messenger/attorney service. (Opposition at p. 1.) Code of Civil Procedure section 1033.5, subdivision (a)(14) allows “[f]ees for the electronic filing or service of documents through an electronic filing service provider if the court requires or orders electronic filing . . . .” The Court will therefore allow this cost.

Plaintiff also listed a $60.00 filing fee for a motion for leave to amend that was never filed. Plaintiff agrees to strike this cost. (Opposition at p. 1.)

Defendant moves to strike $3,014.36 of Plaintiff’s $4,290.91 for jury fees. Defendant argues that the parties split this cost and Plaintiff’s claimed amount is more than the actual amount. (Motion at pp. 3-4.)

Defendant argues that “Plaintiff’s failure to provide the underlying documentation and invoices makes it impossible for US Foods (or the Court) to sort out how much of the costs claimed are recoverable, necessary, or reasonable.” (Motion at p. 4.) But “[a] ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams, supra, 199 Cal.App.4th at p. 1486.) However, because Defendant has now put those costs at issue, the burden is now on Plaintiff to show that the costs were necessarily relevant and material to the issues involved in the action. (Oak Grove, supra, 217 Cal.App.2d at p. 699.)

Plaintiff purports to provide invoices with his Opposition. (Opposition at p. 2.) The cited exhibit does not contain invoices for the depositions of Plaintiff ($284.50 for taking and $2,127.30 for transcribing) or Padilla ($235.05 for taking and $375.00 for transcribing). (See Lyon Decl., Ex. 2; see also Reply at p. 1.) The Court therefore deducts $3,021.85.

Defendant argues that $469.15 for taking the depositions of Plaintiff and Timothy Lanning is excessive and not reasonably necessary because only Defendant noticed these depositions, and Plaintiff’s counsel conducted less than twenty minutes of cross-examination of Plaintiff. (Motion at p. 6; see Choi Decl. ¶¶ 12-14.) Plaintiff does not address this argument in his Opposition. The Court therefore deducts $184.65 for the deposition of Lanning (the cost for Plaintiff was already deducted above).

Defendant argues that $1,602.80 in videotaping costs was unnecessary because Plaintiff did not use all the video at trial. (Motion at p. 5.) Although all of the deposition video was not introduced at trial, that does not make their preparation unnecessary. The witnesses might not have been available to testify at trial, or the videotaped depositions might have been needed for impeachment. The Court finds that videotaping the depositions was reasonable.

Defendant also argues that the videotaping costs are unreasonable because “staff members at Plaintiff’s counsel’s office conducted the video recording using Zoom, which is a no-cost feature of the communications platform and requires [only a] single mouse click to activate the video recording function.” (Motion at p. 5; see Choi Decl., Ex. F.) Plaintiff does not address this argument or explain why he in fact incurred this cost. The Court therefore deducts $1,602.80 in videotaping costs.

Defendant moves to strike $2,213.90 in service of process costs for witnesses who were Defendant’s employees and were never deposed or called to testify at trial.

Plaintiff explains why he believed that Felipe Osorio, Sarah Zavala, Gerard McInnis, Carlos Zamora, and Geovanni Montes Castro were relevant witnesses. (Opposition at p. 3.) Additionally, Zamora and Castro “were difficult to track down,” McInnis and Zavala were out of state during trial, and Osorio’s testimony would likely be duplicative of other witnesses’ testimony. (Id. at p. 4.) The Court cannot conclude that these costs were unreasonable, and Plaintiff can recover the amount actually incurred in effecting service. (Code Civ. Proc., § 1033.5, subd. (a)(4).)

On August 31, 2021, Plaintiff designated Lanning as an expert “regarding economic losses to Plaintiff caused by termination and other adverse employment actions by Defendants, including but not limited to past and future lost wages, medical expenses and damage to credit and related losses and the bases therefore.” (Choi Decl. ¶ 16 & Ex. G.) However, on July 27, 2021, the Court had granted summary adjudication regarding the alleged wrongful termination, discrimination, and retaliation. The Court also granted summary adjudication of claims for assault, battery, and intentional infliction of emotional distress because they were barred by the exclusive remedy provisions of the Workers’ Compensation Act and Defendant did not ratify the conduct. Therefore, there was no remaining basis for these economic losses at the time Plaintiff designated Lanning. As the Court stated when denying Defendant’s Motion in Limine No. 7, “Plaintiff cannot now try to turn his harassment and hostile work environment causes of action into the already-adjudicated wrongful termination causes of action.”

Plaintiff also designated Lanning as an expert to testify about “the net worth, income statements, loan applications and balance sheets, and ability to pay, of the defendant(s) for purposes of punitive damages.” (Choi Decl., Ex. G.) Lanning did not testify at trial. (Choi Decl. ¶ 18.) Plaintiff notes that Justin Klinkenberg, Lanning’s colleague at the same firm, did testify during the punitive damages phase. (See Opposition at p. 6.) However, Plaintiff did not designate Klinkenberg as an expert, he began analyzing the information about two hours before testifying, he testified for only about thirty minutes, and he had no information about a report prepared by Lanning or any testimony by Lanning. (Reply at p. 4; Choi Suppl. Decl. ¶ 7 & Ex. N.)

Defendant moves to strike $11,293.14 in costs for the court reporter and trial transcripts.

A party may not recover costs for transcripts of court proceedings not ordered by the court. (Code Civ. Proc., § 1033.5, subd. (b)(5).) The Court did not order trial transcripts.

Plaintiff argues that “the transcript was in effect ordered by the Court to be available to the jurors” because “[t]he jury received an instruction from the Court that they could have the reporter read back any part of the transcript,” and “the Court did ask for some portions of the transcript to be reviewed or read back during trial and the court used LiveNote to help review testimony and rule on objections.” (Opposition at p. 6; see also CACI Nos. 102, 5011.) This does not transform the court reporter’s record into a court-ordered transcript.

Defendant moves to strike $1,592.97 in costs for exhibits. Defendant notes that Plaintiff did not specify the nature of the models, enlargements, and photocopies of exhibits, as required by Item 11 of the memorandum of Costs. (Motion at p. 9.)

In response, Plaintiff amended his request to be $1,420.10 “[b]ased on invoices not provided to Plaintiff at the time of filing.” The Court questions how Plaintiff’s counsel could have initially included these costs without having invoices and how counsel could have signed the Memorandum of Costs asserting that “[t]o the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case.”

Defendant moves to strike $7,954.88 in costs for counsel’s lodging ($7,366.41) and meals ($588.47). These costs may be allowable in the Court’s discretion when analogizing to recoverable travel and meal costs for out-of-town depositions. (See Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 695.)

Plaintiff has withdrawn his request for a $310.54 hotel cancellation fee. (Opposition at p. 8.)

To justify the remainder of the Omni Hotel costs, Plaintiff argues that “[p]rep time would be cut in half, by four hours per day, were plaintiff’s counsel required to drive to and from home in Huntington Beach. This would prevent Plaintiff’s counsel from being properly prepared at trial.” (Opposition at p. 7.) However, the Court notes that Plaintiff’s counsel’s office is located in Long Beach, within Los Angeles County and less than 22 miles from this courthouse. The Court therefore finds that the lodging expenses were not “reasonably necessary to the conduct of the litigation,” but instead were “merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Additionally, Plaintiff’s only supporting evidence is a few Chase Bank credit card charges that do not itemize the costs. (See Lyon Decl., Ex. 4.) As Defendant notes, “the Court and US Foods have no way of testing the veracity of Plaintiff’s claims that these costs were for hotel accommodations, as opposed to costs his attorney may have incurred for dining, room service, alcoholic beverages at the lobby bar, mini bar charges, spa treatments, laundry, dry cleaning, or any other amenities that the hotel offers to guests.” (Reply at p. 7.)

The Court finds that the meal costs are not recoverable because “attorneys have to eat, whether they are conducting litigation or not.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Plaintiff also does not provide documentation supporting these costs after they were challenged by Defendant.

“Messenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) “Courier and messenger fees are recoverable, at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 696.) Such costs may be reasonably necessary when litigation is complex and other service options may not be appropriate due to the volume and heavy workload involved in the litigation. (Ibid.; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.)

Plaintiff contends only that “[t]hese fees were necessary as Plaintiff had a variety of documents which needed to be filed with the court, including copies of the Opposition to Motion for Summary Judgment, Motions in Limine, and CMC Statements.” (Opposition at p. 8.) Additionally, Defendant notes that the $594.90 messenger fees on September 21, 2022 appear unnecessary because Plaintiff and his counsel were in the courtroom on that date. (Motion at p. 11.) The few invoices provided by Plaintiff total only $282.95. (See Lyon Decl., Ex. 5.) Plaintiff did not satisfy his burden of showing that the messenger costs were reasonable or necessary. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.)

Plaintiff’s Opposition sets forth generalities about the benefits of mock juries, but Plaintiff does not provide anything other than conclusory justifications for this cost. (Opposition at pp. 8-9; see Lyon Decl. ¶ 10.) The mock jurors’ insights about “evidence, themes, frames, arguments and damages requests” and their reactions to the parties (Opposition at pp. 8-9) are likely marginal contributions that should be within counsel’s knowledge and expertise in this type of case. (See Taylor-Ewing v. City of Los Angeles (C.D. Cal., Mar. 31, 2011, No. CV 07-5556-GHK (SSX)) 2011 WL 13213579, at *2; see also Lyon Decl. in Support of Motion for Attorney Fees ¶ 2 [counsel has over 30 years of litigation experience, including exclusive practice of employment law since 2006].)

Although not raised in the motion, the Court also deducts $1.64 for postage because that cost is expressly disallowed by statute. (Code Civ. Proc., § 1033.5, subd. (b)(3).)

The motion is GRANTED IN PART. The Court strikes $60.00 in filing fees, $3,014.36 in jury fees, $3,021.85 and $184.65 in deposition costs, $1,602.80 in deposition videotaping costs, $7,056.25 in expert fees, $11,293.14 in court reporter/transcript costs, $172.87 for exhibits, $7,954.88 in lodging and meal expenses, $1,302.20 in messenger fees, $800.00 for a mock jury/focus group, and $1.64 for postage.

Plaintiff is therefore entitled to $18,668.16 in costs ($55,132.80 minus $36,464.64).

California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, 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.” (Ibid.) Relevant factors include “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

Plaintiff seeks a total of $1,292,197.20 in attorney fees, consisting of $600,487.50 in attorney fees (723.55 hours), $45,611.10 in legal assistant fees (506.79 hours), and $646,098.60 as a 2.0 lodestar multiplier.

Plaintiff’s counsel value their time at various hourly rates: $850 for Geoffrey Lyon; $550 for Kathleen E. Collins; $450 for Neda Farah; $350 for David Sack; and $90 for legal assistants.

Defendant argues that these rates are unreasonable, and Attorney Lyon’s rate should be no more than $750. (Motion at pp. 6-7.) Plaintiff cites a few orders in other cases, issued in 2020 and 2022, where Attorney Lyon was awarded fees at a rate of $750/hour and other attorneys received a rate of $250-to-$550/hour. (Motion at pp. 12-13.) Attorney Lyon has extensive experience in employment law, but there is no evidence supporting a rate of $850. The Court therefore finds that a reasonable hourly rate for Attorney Lyon is $750.

Based on this adjusted reasonable hourly rate, the Court reduces the base request for attorney and legal assistant fees to $577,533.60 ($646,098.60 minus Attorney Lyon’s reduction of $68,565.00 [685.65 hours at $100/hour]).

Counsel provides a copy of timesheets reflecting 685.65 hours for Attorney Lyon; 13.2 hours for Attorney Collins; 17.8 hours for Attorney Farah; 6.9 hours for Attorney Sack; and 506.79 hours for legal assistants. (Lyon Decl., Ex. 2.) Plaintiff also states that Attorney Lyon spent another 78.5 hours after filing the fee motion for opposing Defendant’s post-judgment motions and drafting the reply to this motion. (Reply at p. 8; Lyon Reply Decl. ¶ 6.)

The Court finds that this amount of time is excessive and unreasonable for at least four reasons.

Defendant argues that Plaintiff’s attorney fees should be reduced to eliminate fees for claims where Plaintiff did not prevail. (Opposition at p. 3.) On July 27, 2021, the Court granted summary adjudication in favor of Defendant on the second (discrimination), third (retaliation), and fifth through tenth (assault, sexual battery, IIED, battery, whistleblower retaliation, and wrongful termination) causes of action. Accordingly, at trial, Plaintiff prevailed only on his first (harassment) and fourth (failure to prevent harassment) causes of action.

“Although fees are not reduced when a plaintiff prevails on only one of several factually related and closely intertwined claims [citation], ‘under state law as well as federal law, a reduced fee award is appropriate when a claimant achieves only limited success’ [citations].” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989-990.) “Where a prevailing plaintiff succeeded on only some claims, the court should make a two-part inquiry: ‘First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?’” (Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 183, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 434 (Hensley).)

When a plaintiff presents “distinctly different claims for relief that are based on different facts and legal theories,” then “counsel’s work on one claim will be unrelated to his work on another claim . . . [and] work on an unsuccessful claim cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’” (Hensley, supra, 461 U.S. at pp. 434-435.) On the other hand, when a plaintiff’s claims “involve a common core of facts or will be based on related legal theories,” then “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.” (Id. at p. 435.) In those cases, the litigation “cannot be viewed as a series of discrete claims,” and the court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” (Ibid.) “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. . . . If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith. . . . Again, the most critical factor is the degree of success obtained.” (Id. at pp. 435-436.)

Here, Plaintiff’s claims did involve a common core of facts. Plaintiff alleged that Defendant created a hostile work environment based on an August 29, 2019 incident, where coworker Torres “threw Plaintiff to the ground and subsequently sexually assaulted (i.e. shoved his crotch repeatedly into the face of) Plaintiff,” and Defendant failed to prevent this harassment. (Complaint ¶¶ 15, 23, 37.) The unsuccessful discrimination, assault, battery, IIED, retaliation, and wrongful termination claims also arise out of these events and Plaintiff’s reporting of the hostile work environment. (See Complaint ¶¶ 27-28, 41, 46, 54, 61, 66.) Although Defendant argues that some of the unsuccessful claims are unrelated “because US Foods’ liability as to these claims centered around whether US Foods ratified the August 29, 2019 incident” (Opposition at p. 4), the factual background (as opposed to Defendant’s defense) remained the same.

Because Plaintiff’s claims involved a common core of facts, it is difficult to divide the attorney hours on a claim-by-claim basis. (Hensley, supra, 461 U.S. at p. 435.) The Court must therefore focus on the significance of Plaintiff’s relief as compared to the hours expended on the litigation. (Ibid.) Plaintiff’s limited success on two of ten causes of action resulted in a compensatory damages award of $170,000.00 for his emotional distress. Plaintiff did not—and could not—recover compensatory damages for lost wages due to his termination or statutory damages/penalties under the Labor Code. (See Complaint at p. 14.) He did, however, receive more than half of the $300,000.00 sought for emotional distress damages.

Accordingly, the Court will apply a slight deduction to account for Plaintiff’s degree of success in this action as a whole.

Defendant argues that the use of four attorneys and five legal assistants resulted in duplicative work and inflated hours, particularly for work opposing the motion for summary judgment. (Opposition at p. 7.) Defendant provides multiple examples of Attorney Lyon reviewing and duplicating work that was originally done by other attorneys, such as summaries of depositions taken by others. (Opposition at p. 8.) Two legal assistants billed 14.45 hours and 72.35 hours for selecting evidence to use in the separate statement in opposition to Defendant’s motion for summary judgment. (Ibid.) Two other legal assistants also billed 6.3 hours and 51.5 hours assisting with the opposing the motion for summary judgment, including for the separate statement. (Ibid.) According to Defendant’s calculations, Plaintiff’s counsel and legal assistants billed 189.9 hours preparing the opposition.

The Argument section of Plaintiff’s opposition spanned about ten pages. The evidence cited in the response to the separate statement was primarily Plaintiff’s declaration and various deposition testimony. This was not a complex case with voluminous documents and other exhibits to sort through in order to dispute only 65 material facts—many of which Plaintiff responded to by incorporating by reference his responses to prior facts. This example of duplicative and unreasonable billing requires a reduction in fees.

Defendant argues that Plaintiff’s counsel provides vague and block-billed time entries. (Opposition at p. 9.) “An attorney’s chief asset in submitting a fee request is his or her credibility, and . . . vague, blockbilled time entries inflated with noncompensable hours destroy an attorney’s credibility.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325; see also ibid. [“Blockbilling, while not objectionable per se in our view, exacerbated the vagueness of counsel’s fee request, a risky choice since the burden of proving entitlement to fees rests on the moving party.”].)

For example, on August 9, 2022, Attorney Lyon billed 1.6 hours for “Confer with S. Wilson & defense re interviewing former ees before trial; confer with S. Wilson re demonstratives; jury questionnaire; return lanning to witness list; financial records subpoenas for punis; confer with defense re Torres depo desigs; exhibit binders; confer with defense re witness scheduling and whom defense is not repg; confer with defense re exhibits; objection to adding lanning to witness list.”

On August 11, 2022, Attorney Lyon billed 10.5 hours for “Review and Revise jury questionnaire, verdict form, witness list, review depo desigs; jury instns, joint and objected; Torres default packg; add objections to exhibits; finalize pre-trial; demonstratives; Spiritt records and plaintiffs redactions; Confer with defense re jury questionnaire, verdict form; and pre-trial list, jury instructions and exhibits; Confer with S. Wilson re pretrial list for court’s trial binder and prepare for meet & confer call with def, Spiritt records, Torres default; delivery of exhibits to binder-provider.”

On September 6, 2022, Attorney Lyon billed 0.3 hours for “Task list.” On December 8, 2022, Attorney Lyon billed 0.1 hours for “Confer with def re.” On January 6, 2023, he billed 0.3 hours for “rvw.” There is no further explanation for these incredibly vague entries.

These and other block-billed and vague time entries do not allow the Court to determine that all of the billed time was reasonable.

Defendant argues that Plaintiff’s counsel improperly billed for travel time and administrative tasks. (Opposition at pp. 10-11.) The Court agrees. Here are just a few examples.

On August 13, 2022, Attorney Lyon billed time for “Tell omni checking in tomorrow” (14 minutes), “Print 3 copies of mil 1, order & oppn” (8 minutes), “Add demo exhibits to binders” (16 minutes), and “Pack car” (1.5 hours). On August 14, 2022, he billed 4 hours for “Load car with trial and hotel-office materials, travel to hotel and setup hotel office,” and the next day, he billed 2.5 hours for “Pack up hotel-office and car and travel home.”

On August 26, 2022, Attorney Lyon billed 0.3 hours for “Verify venmo to Vincent Henry was removed from account and not reversed.”

On September 6, 2022, Attorney Lyon block-billed 8.9 hours for tasks including “travel to court and attend trial call . . . attempt to connect to courts media system, return to hotel and order several hdmi connectors, return to court and get computer working through elmo connection; return to hotel and update task list.”

On September 8, 2022, Attorney Lyon billed 2 hours for “travel to hotel and home,” and on September 11, 2022, he billed 1.5 hours for “Travel to hotel.”

In November and December 2022, Legal Assistant Wilson billed at least 9.7 hours for preparing and revising time sheets. On November 25, 2022, Attorney Lyon billed 5.4 hours for “Collect all timesheets covering Carreon case and review file to insure all documents reviewed or revised and accounted for; prepare fee motion.” On December 22, 2022, Attorney Lyon billed 0.4 hours for “review, modify & approve timesheets.” This additional work on preparing timesheets is puzzling because Plaintiff’s counsel attested that the entries are accurately recorded at the time of entry. Attorney Lyon declares that time entries “were created in the regular course of our firm’s business, as part of its regular business practices (including for the recovery of fees when we prevail at trial), at or about the time the work was done, by persons with personal knowledge of the entries – those doing the work,” and “[o]ur attorneys and legal assistants are in the practice of recording their time throughout the day, accurately.” (Lyon Decl. ¶ 4.)

On December 19, 2022, Attorney Lyon billed 0.2 hours for “costs rvw re hotel, jury, meals, first legal.”

These are just a few of many examples of improperly billed travel time and administrative tasks.

As discussed with the concurrent Motion to Tax Costs, the Court does not find that Plaintiff’s counsel’s travel expenses and preparation of a “hotel-office” were necessary expenses, rather than being merely convenient for counsel. Plaintiff cites only two cases in his reply, both of which briefly discussed an attorney’s travel expenses as costs—not including an attorney’s hourly fee for traveling to court. Even when construing Attorney Lyon’s travel time as costs including attorney fees authorized by statute (Code Civ. Proc., § 1033.5, subd. (a)(10)(B)), they are still subject to Government Code section 12965, subdivision (c)(6)’s requirement that the fees and costs be reasonable. The Court finds that the travel time to and from the hotel is not reasonable.

For the administrative tasks, it is unreasonable to have those tasks performed by the attorney with the highest billing rate. Plaintiff’s counsel “agrees the bulk of his time consolidating time sheets could have been done by Mr. Wilson at $90 per hour instead of $850, reducing the lodestar for Lyon’s time by the differential of $9804. Thus, the total cost for compiling the 800 timesheet entries was 23.3 hours at $90 per hour, or $2097.” (Reply at p. 8.) The Court believes that more than just the timesheet tasks could have been completed by legal assistants or staff with lower rates. Billing for clerical work (such as preparing binders, printing, and other basic organizational tasks) at partner rates is unreasonable and excessive. (See Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1186-1187.)

Considering the type of case, complexity of the case, relatedness of Plaintiff’s claims, Plaintiff’s degree of success, length of litigation, billing records, and the record as a whole, the Court concludes that a reasonable amount of attorney fees is $346,520.16, a 40% reduction from the adjusted base of $577,533.60. (See Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102 [“When a ‘voluminous fee application’ is made, the court may . . . ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’”].)

Plaintiff requests a lodestar multiplier of 2.0. (Motion at pp. 14-17.) “[F]or the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar.” (Ketchum, supra, 24 Cal.4th at p. 1138.) “[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.” (Id. at p. 1139.)

Plaintiff argues that the heavy expenses and protected litigation—including 1,230 hours of attorney and legal assistant time, over $50,000.00 in costs, and extensive discovery, spanning over three years—warrants a multiplier. (Motion at p. 15; see id. at p. 5.) The amount of time expended is compensated through the actual billing records and number of hours, and the costs are separately accounted for in the Memorandum of Costs.

Plaintiff also argues that the exceptional results and quality of representation warrant a multiplier because counsel “developed Plaintiff’s credible testimony of repeated harassment complaints to Mgrs. Ramirez, Starke, HR Zavala, and union reps Osorio and Methus,” including some testimony “that management almost certainly knew of the conduct.” (Motion at pp. 15-16.) However, the Court subsequently granted in part Defendant’s motion for judgment notwithstanding the verdict because Plaintiff failed to introduce any evidence of ratification by an officer, director, or managing agent of Defendant. This failure resulted in the loss of the jury’s $1 million punitive damages award, leaving Plaintiff with only $170,000.00 in compensatory damages for his two surviving causes of action (of the original ten causes of action).

Considering the totality of this litigation, the Court finds that no additional multiplier should be awarded.

The motion for attorney fees is GRANTED IN PART. The Court awards Plaintiff $346,520.16 in attorney fees.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court