Judge Timothy B. Taylor, Case 37-2020-00033834-CU-OE-CTL 2023-08-04 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2020-00033834-CU-OE-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other employment Motion Hearing (Civil) 37-2020-00033834-CU-OE-CTL CARBAUGH VS HI Q INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 07/13/2023

Tentative Rulings on Motions to Compel Further Responses to Document Demand, and for

Attorneys' Fees Carbaugh v. Hi-Q, Case No. 2020-33834 August 4, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a PAGA case challenging the wage and hour practices of defendant, which sells health medical insurance policies to 'individuals who they believed to be low risk insurees due to healthy lifestyles.' Plaintiffs allege they worked as sales people, and were not paid as required under the Labor Code. The original complaint was filed nearly three years ago. Defendant answered seasonably. ROA 9.

At the due-course CMC, the parties informed the court that another wage and hour action had been filed in a different department against the same defendant. The court gave the parties time to address this issue. ROA 18. The parties eventually stipulated to consolidation and designated this matter as the lead case. ROA 30, 33. On July 16, 2021, the court approved the stipulation. ROA 31.

Thereafter, plaintiffs filed a consolidated complaint (ROA 36), and then a first amended consolidated complaint (ROA 37), and then a SAC (ROA 54).

The court incorporates the minutes for September 21, 2021; November 10, 2022; and April 28, 2023 for further background. ROA 43, 69, 103.

The operative complaint is the TAC filed by stipulation last month. ROA 95, 120. Trial is scheduled for early 2024. ROA 101. Counsel should not anticipate further continuances in this already oft-delayed case.

It has been observed that '[a]ll too often attorney fees become the tail that wags the dog in litigation.' Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1399. This may be apt in the present case. The court granted attorneys' fees as discovery sanctions in 2021 (ROA 43); granted attorneys' fees under CCP section 1281.98 in 2022 (ROA 69); and is now being asked to award even more attorneys' fees. Specifically, the following motions are presently before the court: Calendar No.: Event ID: TENTATIVE RULINGS

2970158 55 CASE NUMBER: CASE TITLE: CARBAUGH VS HI Q INC [IMAGED] 37-2020-00033834-CU-OE-CTL A. Plaintiffs' motion for 'attorneys' fees and costs & sanctions' under CCP sections 1281.98-99. ROA 107-109. An earlier version of this motion was filed 4/6/23 and calendared for April 28, then removed from the calendar by the moving party. ROA 88-92.

B. Plaintiff Dochtermann's motion for 'an order enforcing and/or modifying attorneys' fees and costs' under CCP sections 1281.98-99. ROA 115-119.

C. Plaintiff Carbaugh's motion to compel responses to document demands 12-18, and for additional attorneys' fees as sanctions of $885.00. ROA 110-114.

Defendant filed opposition to the former motion and a 'response' to the latter two motions. ROA 121-127. Plaintiffs replied. ROA 128-133. The court has reviewed the briefing, and no further submissions are authorized in connection with these motions.

2. Applicable Standards.

A. The court incorporates parts 2A and 2B of the minutes from September 24, 2021 (ROA 43).

B. Pursuant to Code of Civil Procedure section 2031 et seq. and in particular Code of Civil Procedure section 2031.300, a party upon whom a document demand has been served has 30 days in which to respond to same. After receiving a response to a demand for production, the party making the demand may move to compel further response to the demand if a statement of compliance with the demand is incomplete, a representation of the party's inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. Code Civ. Proc. § 2031.310(a).

C. The court incorporates part 2 of the minutes from November 10, 2022 (ROA 69).

3. Discussion and Rulings.

A. The motion for attorneys' fees and costs and sanctions is granted in part and denied in part.

The request for attorneys' fees in the amount of $53,355.00 is granted. Once again, defendant does not dispute that there has been a material breach of the arbitration agreement.

Instead, defendant contends that plaintiffs have failed to submit evidence supporting the claimed amount of fees. The court disagrees. As explained in the court's previous attorneys' fees ruling, Code of Civil Procedure section 1981.98(c)(1) does not limit an award of fees to those incurred as a result of the material breach. See ROA 69 at p. 4.

Moreover, while contemporaneous time records are the 'best evidence' of lawyers' hourly work (Taylor v. County of Los Angeles (2020) 50 Cal.App.5th 205, 207), they are not required (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263). 'The declaration of an attorney as to the number of hours worked on a particular case may be sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.' Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237. Such is the case here. Plaintiffs' counsel states in his declaration that he billed at an hourly rate of $500 and worked 'no less than 106.71 hours in the arbitration matters[.]' (Hewgill Decl., ¶¶ 21-22.) This is all that is required; defendant offers no evidence and no reasoned argument that Mr. Hewgill did not spend the time, does not deserve the rate, or spent the time unwisely.

In sum, based on the evidence submitted, the court finds that a reasonable and proper amount of fees to be awarded pursuant to section 1981.98(c)(1) is $53,355.00.

The request for $3,375.00 in costs is denied as insufficiently supported. It is unclear what exactly is included in 'expert costs' and 'mediation fee.' Calendar No.: Event ID: TENTATIVE RULINGS

2970158 55 CASE NUMBER: CASE TITLE: CARBAUGH VS HI Q INC [IMAGED] 37-2020-00033834-CU-OE-CTL The request for terminating sanctions is denied. The court finds that circumstances make the imposition of such a 'drastic penalty' unjust. See Code Civ. Proc. § 1281.99(b); see also Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.

Consistent with the foregoing, plaintiffs are directed forthwith to submit a mesne judgment for the court's signature.

B. The motion for an order enforcing and/or modifying the attorneys' fees and costs awarded under Code of Civil Procedure section 1281.98 is denied. As alternative relief, plaintiff Dochtermann is directed forthwith to submit a mesne judgment, in the amount previously awarded, for the court's signature.

C. The motion to compel responses to requests for production of documents is granted.

On September 9, 2021, plaintiff Carbaugh served requests for production of documents on defendant.

(Dos Santos Decl., ¶ 4.) No responses to requests 12-18 have been received to date. (Id. at ¶¶ 5, 10.) Accordingly, defendant must serve verified responses without objections and produced the requested documents by August 18, 2023. Defendant's request for additional time to comply is denied.

Plaintiff's request for monetary sanctions is granted in the reduced amount of $810.00 (2 hours at $375 per hour plus the $60.00 filing fee). The sanctions must be paid by defendant to plaintiff Carbaugh by September 1, 2023.

Calendar No.: Event ID: TENTATIVE RULINGS

2970158 55