Judge: Upinder S. Kalra, Case: 22STCP00995, Date: 2022-12-14 Tentative Ruling
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Case Number: 22STCP00995 Hearing Date: December 14, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: December
14, 2022
CASE NAME: The Wrap News, Inc., a Delaware
Corporation v. Jocelyn Johnson
CASE NO.: 22STCP00995
RESPONDENT’S
MOTION FOR ATTORNEYS’ FEES
MOVING PARTY: Respondent Jocelyn Johnson
RESPONDING PARTY(S): Appellant The Wrap News, Inc.
REQUESTED RELIEF:
1. An
order granting the motion for attorneys’ fees, totaling $8331.32.
TENTATIVE RULING:
Motion for Attorneys’ Fees is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On March 18, 2022, Appellant The Wrap News, Inc.
(“Appellant”) filed a notice of appeal of the Order, Decision or Award of the
Labor Commissioner, as to the matter involved with Respondent Jocelyn Johnson
(“Respondent.”) In the Decision of the Labor Commissioner, Appellant was
ordered to pay Respondent $10,094.57.
On July 22, 2022, Respondent filed a Demurrer without a
Motion to Strike.
On August 19, 2022, Appellant filed a Request for Dismissal.
The current Motion for Attorney’s was filed by Respondent on
August 31, 2022. Appellant’s Opposition was filed on December 1, 2022.
Respondent’s Reply was filed on December 7, 2022.
LEGAL STANDARD:
The
prevailing party has the burden of showing that the requested attorney fees are
reasonable. (Robertson v. Fleetwood
Travel Trailers of California Inc. (2006) 144 Cal.App.4th 785, 817.) The
party seeking attorney fees “is not necessarily entitled to the compensation of
the value of attorney services according to [his or her] own notion or to the
full extent claimed . . . .” (Levy v. Toyota Motor Sales, USA, Inc.
(1992) 4 Cal.App.4th 807, 816.) If the “time expended or the monetary charge
being made for the time expended are not reasonable under all circumstances,
then the court must take this into account and award fees in a lesser amount.”
(Nightingale v. Hyundai Motor America
(1994) 31 Cal.App.4th 99, 104.)
A
calculation of attorneys’ fees for a Song-Beverly action begins with the
“lodestar” approach, under which the Court fixes the lodestar at “the number of
hours reasonably expended multiplied by the reasonable hourly rate.” (Margolin v. Regional Planning Com.
(1982) 134 Cal.App.3d 999, 1004-1005.) “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.” (Ibid.)
“It is
appropriate for a trial court to reduce a fee award based on its reasonable
determination that a routine, non-complex case was overstaffed to a degree that
significant inefficiencies and inflated fees resulted.” (Morris
v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.) It is also
appropriate to reduce a fee award based on “inefficient or duplicative efforts”
in the billing record. (Id. at p.
38.) However, the analysis must be “reasonably specific” and cannot rely on
general notions about the fairness of the fee award. (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102.)
Moreover, in conducting the analysis, courts are not permitted to tie any
reductions in the fee award to some proportion of the buyer’s damages recovery.
(Warren v. Kia Motors America, Inc.
(2018) 30 Cal.App.5th 24, 39.)
The
lodestar figure may also 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. (Serrano v.
Priest (1977) 20 Cal.3d 25, 49; PLCM
Group, Inc. v. Drexler (2000) 22 Cal.App.4th 1084, 1095.) The factors considered in determining the
modification of the lodestar include the nature and difficulty of the
litigation, the amount of money involved, the skill required and employed to
handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm, LLC v. Teitler Family
Trust (2008) 162 Cal. App. 4th 770, 774 (emphasis in original).) A
negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001)
92 Cal.App.4th 819.)
ANALYSIS:
Respondent Jocelyn Johnson moves
for attorney’s fees for at least $7,785 in fees and $546 in costs.
Factual Background:
After an administrative Berman
hearing, the Commissioner found in respondent’s favor in the amount of
$10,094.57. Plaintiff/Appellant appealed this award, but failed to file the
necessary bond. The Court in the June 20th Case Management
Conference noticed this error, and stated that unless proof was submitted, the
court would dismiss the appeal. In it, the Court also stated that respondent
should serve and file a response prior to the next hearing. Respondent filed a
demurrer on July 22nd, and Appellant filed a dismissal on August 19,
2022. This motion is based upon the fees generated the demurrer, reviewing the
dismissal, and preparing the current motion.
Because
Respondent was the successful party on appeal, under Section 98.2, Respondent argues
that they are entitled to fees and costs associated with the appeal.
Reasonableness
of Hourly Rate
Respondent
argues that the hourly rate is reasonable based upon the hourly rates changed
in California. The hourly rate of $450 is reasonable and below comparative
rates in light of counsel’s 30+ years of experience. (Motion 10: 11-13.)
“In determining hourly rates, the
court must look to the “prevailing market rates in the relevant community.” (Bell v. Clackamas County (9th
Cir.2003) 341 F.3d 858, 868.) The rates of comparable attorneys in the forum
district are usually used. (See Gates
v. Deukmejian (9th Cir.1992) 987 F.2d 1392, 1405.) In making its
calculation, the court should also consider the experience, skill, and
reputation of the attorney requesting fees.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215
Cal.App.4th 972, 1009.)
The
Court finds that the hourly rate is reasonable, and the Appellant makes no
argument as to the reasonableness of the hourly rate.
Reasonableness of Hours Billed
To
determine if the requested amount is reasonable, California courts utilize the
lodestar method. The two-step process begins with the lodestar method, which is
the time spent on the matter multiple by the hourly rate. After the lodestar
method, the second step is determining whether a multiplier should be applied.
The factors that Courts look at to determine if a multiplier is reasonable are:
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.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1132.)
A verified
fee bill is “prima facie evidence the costs, expenses and services listed were
necessarily incurred, and when they are properly challenged the burden of proof
shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)
Here,
Respondent argues that the fees incurred were reasonable. After the appeal,
Respondent appeared pro per at the Case Management Conference, was told to file
responsive pleading, and then hired counsel. (Motion 7: 25-28.) Additionally,
when Respondent hired counsel after the June 20th conference,
Appellant had yet to dismiss the matter. Thus, in accordance with the Court’s order,
Respondent filed responsive pleading. Moreover, Respondent argues that
Appellant did not dismiss the matter right after the June 20th
hearing, waiting until August 19th to dismiss, when the next hearing
was scheduled for August 26th. (Dec. Short, Ex. A.) Lastly,
Appellant refused to consider paying attorney’s fees.
Appellant
argues that Respondent did not reasonably incur the fees in this matter, and
generated unwarranted fees. The Court should either deny the motion, or reduce
the fee award to what was reasonably incurred. First, the matter was dismissed
before the OSC Re: Dismissal scheduled for August 26, 2022. Second, Appellant
argues that the demurrer was unnecessary and served no purpose because
Respondent was informed that Appellant would respond to the OSC Re: Dismissal.
Moreover, the demurrer was improper as Respondent failed to meet and confer
prior to filing the demurrer. Third, the brief memo was unnecessary, as the
matter was dismissed in a timely manner.
The Court finds that the hours
billed are reasonable, in part. After the Court directed Respondent to file a responsive pleading
before the next hearing, she retained counsel. This was reasonable. Moreover,
it was reasonable to meet and confer with Respondent, review court docket, communicate
with opposing counsel, reviewing oppositions filings and update Respondent on
status of case. Appellant challenges the necessity of the Demurrer, meet and
confer communication OSC Memorandum, and this fee motion. The Court finds that these
efforts were reasonable.
After reviewing the minute order
regarding failing to file the jurisdictional bond, over one month after the
case management conference, it was entirely reasonable for Appellant’s counsel
to file a responsive pleading. While appellant concedes that there was no meet
and confer prior to the filing of a demurrer as is required by CCP § 430.41(a),
the meet and confer, in this instance, would have served no purpose. As
indicated in the opposition, counsel for Appellant indicated in a after the
fact meet and confer that he was trying to negotiate a settlement or pay the
bond. (Opp. Dec. Finch.) Respondent’s counsel
was not required to accept these representations. If a bond was not paid and
the case was not settled, there was no guarantee that the Appellant would post
the bond or the Court would dismiss the case. Accordingly, it was reasonable
for Respondent’s counsel to file a Demurrer to comply with the Court’s order to
file a responsive pleading and to preserve the issue. In fact, Appellant did
not pay the bond. Thereafter, it was
also reasonable for Respondent’s counsel to file a memorandum on August 15,
202, in support of the OSC requesting that the Court dismiss the action for failing
to post a bond. As of that date, Appellant had yet to post the bond or dismiss
the case. In fact, one reasonable inference is that Appellant dismissed the
case on August 19, 2022, in response to Respondent’s filing.
However, the Court finds that some
of the hours expended for these efforts were unreasonable. As such, the Court
finds that the counsel should have reasonably expended 14 hours of attorney
time, including a reply and appearing remotely.
Accordingly, the Court awards
$6300 in attorney fees and $546 in costs for a total award of $6,846.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion for Attorneys’ Fees and Costs is GRANTED in the
amount of $6,846.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: December
14, 2022 ________________________________ Upinder
S. Kalra
Judge
of the Superior Court