Judge: Upinder S. Kalra, Case: BC697083, Date: 2022-10-04 Tentative Ruling
Case Number: BC697083 Hearing Date: October 4, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: October
4, 2022
CASE NAME: Glenda Rodger v. Los Angeles County, et al.
CASE NO.: BC697083
PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES
MOVING PARTY: Plaintiff Glenda Roger
RESPONDING PARTY(S): Defendant County of Los Angeles
REQUESTED RELIEF:
1. An
order awarding Plaintiffs attorneys’ fees, costs and expenses.
TENTATIVE RULING:
Motion for Attorneys’ Fees is GRANTED, with a reduction as
discussed below.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On March 8, 2018,
Plaintiff Glenda Rodger (“Plaintiff filed a complaint against Defendant Los
Angeles County and Does 1 through 50 (“Defendant”). The complaint alleged eight
causes of action: (1) Hostile Work Environment Harassment, (2) Discrimination,
(3) Retaliation, (4) Failure to Prevent, (5) Labor Code § 1102.5, (6) Labor
Code § 6310, (7) Failure to Accommodate, and (8) CFRA Retaliation. The
complaint alleged while working as a library assistant in the Lancaster Public
Library, she was constructively terminated. The Plaintiff alleges that she
suffered harassment. Plaintiff had a severe allergic reaction to certain
chemicals in Lysol and Purrell. After she observed other coworkers who were
missing for long periods of breaks without explanations and informed her
supervisor, these products were then placed at her work. Plaintiff also alleges
that she was discriminated based on her age, and was the receipt of harassing
conduct, such as her eyeglasses disappearing and reappearing along with
comments about them.
On May 7, 2018,
Defendant Los Angeles County filed an Answer.
On October 9,
2019, Defendant filed a Motion for Summary Judgment, which was GRANTED, in
part, and DENIED, in part.
On October 19,
2021, the Jury Trial began, where the Jury delivered a special verdict
indicating that the County was liable for damages and awarded the Plaintiff
$804,295.89 in damages.
On January 20,
2022, Defendant filed a Motion for Judgment Notwithstanding the Verdict and a
Notice of Intent to Move for New Trial, which were both DENIED.
On March 7, 2022,
Defendant filed a Motion to Tax Costs.
On April 15,
2022, Defendant filed a Notice of Appeal.
Plaintiff’s current Motion for Attorneys’ Fees was filed on
June 30, 2022.
LEGAL STANDARD
A
prevailing buyer in an action under Song-Beverly “shall be allowed by the court
to recover as part of the judgment a sum equal to the aggregate amount of costs
and expenses, including attorney’s fees based on actual time expended,
determined by the Court to have been reasonably incurred by the buyer in
connection with the commencement and prosecution of such action.” (Civ. Code, § 1794(d).) By permitting buyers
who prevail under Song-Beverly to recover their attorneys’ fees, “our Legislature
has provided injured consumers strong encouragement to seek legal redress in a
situation in which a lawsuit might not otherwise have been economically
feasible.” (Murillo v. Fleetwood
Enterprises, Inc. (1998) 17 Cal.4th 985, 994.)
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:
Plaintiff moves for a total of $3,339,185.00, which is based
on $1,561,945.00 for the hours worked on the case from July 10, 2017, until
June 30, 2022, with a 2.0 multiplier, as well as $107,647.50 in paralegal
costs.
Reasonableness of Hours Billed
Plaintiff
contends that the fees requested are reasonable because she is the prevailing
party. 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.)
Plaintiff has
provided the billing invoices, attached to the Declaration of Lawrance Bohm as
Exhibit B. 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.)
Defendant contends that the hours
billed are unreasonable and excessive, and the court should reduce the
requested amount. First, the Plaintiff’s billing invoices contain block billing
and should be disregarded. Second, the Plaintiff’s invoices also contain
various billings that are inflated. For example, some of the billings are
vague, omitting “critical information, such as the specific activity
undertaken, the purpose of the meeting, the identity of a particular pleading,
or the identities of the participants in a meeting.” (Opp. 10: 15-17.) Another
example is the billing of tasks that are clerical in nature; Plaintiff has not
demonstrated that paralegals were properly qualified to perform these tasks,
like messenger fees and filing pleadings. (Opp. 11: 1-7.) A further example are
billings for internal office conferences; with multiple staff, time was spent
on duplicative and inefficient internal communications. Additionally, the
invoices contain unnecessary billing; specifically, Plaintiff seeks fees based
on multiple attorneys or staff appear at trial. However, there is no
explanation as to why it was necessary for multiple individuals to appear. Moreover, Plaintiff seeks fees that directly
relate to her defamation claim; however, these claims are not related to
Plaintiff’s causes of action.
Verified cost bills are “prima
facie evidence the costs, expenses and services listed were necessarily
incurred…” (Hadley v. Krepel (1985) 167
Cal.App.3d 677, 682.) Still, the Court is the ultimate arbiter in deciding
whether expenses are reasonable.
A review of the invoices indicates
that the billings were generally not. Defendant argues that specific entries
constitute block billing. Examples include an entry to “review and analyze
Plaintiff’s MSJ Opposition and Evidence,” “Reivew, Edit, and Audit Time Entries
for Submission to the court,” and “Integrate exhibits into timeline for trial
outline.” (Opp. 8: 25 – 9: 5.) “Block billing occurs when “a block of time [is
assigned] to multiple tasks rather than itemizing the time spent on each task.”
(Mountjoy v. Bank of America, N.A.
(2016) 245 Cal.App.4th 266, 279). These entries provide the delineated tasks
that the attorneys spent working on, not just a vague reference to this
particular case. As to the issue of multiple attorneys appearing at trial, this
argument fails because Defendant also utilized multiple attorneys at trial.
(Sup. Dec. Boucher ¶ 7.) Utilizing multiple attorneys is not inefficient or
excessive. The provided billings are proper and reasonable.
However, Plaintiff requests an
additional $49,830 for preparing this motion and $22,183.30 for 35.8 hours of
work on replying to the Defendant’s opposition. The Court finds that this
requested amount is excessive. Plaintiff speaks about the firm’s use technology
and strong support staff to reduce billing, and yet it was left for an attorney
to expend 90.6 hours of attorney time to prepare the motion. Why not one of the cadre of specialized
paralegals or assistants? Why wasn’t it sufficient for an attorney to review
the final work product as opposed to prepare the initial document? Similarly, the
Supplemental Declaration of Robert Boucher, which provides the invoices for
this reply, indicates that Mr. Boucher spent over 18.4 hours preparing the 10-page
reply, with an additional 7.5 on other matters for the reply. That total amount
does not include the other over 11 hours of work completed by the other
attorneys and staff. The Court reduces the amount for preparing this motion by
$20,000 and the amount for the preparing the reply by $3,000.
As for Defendant’s argument
concerning paralegal costs and qualifications, the Court finds this argument
has no merit because Plaintiff provided the resume of paralegal Jenni Burton.
(Dec. Bohm, Ex. B.) Plaintiff seeks $107,647.50 in fees for work done by
paralegals. A review of the invoices indicates that the work done by these
individuals is of the type typically completed by paralegals. The Court finds
agrees that no attorney is complete without competent paralegal support.(Supp.
Dec. Boucher ¶ 6.) Thus, the Court
finds the requested hours for paralegals reasonable.
Reasonableness
of Hourly Rate
Plaintiffs
contend that the rates requested for this matter are reasonable. Specifically,
Plaintiffs argue that the hourly rates are based on community standard. “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.)
Plaintiff requests the following
hourly rates: $1,000 for Lawrence A. Bohm, $550 for Kelsey K. Ciarimboli, $450
for Brandon P. Ortiz, and $650 for Robert Boucher. These fees are supported by
separate declarations from independent attorneys, attesting that the rates
sought are reasonable. (Dec. Bohm, Ex. D-H, J-L.)
Defendant argues that the billing
rates are excessive. The rates are unreasonable given the experience of the
attorneys, specifically Mr. Ortiz and Mr. Boucher’s rates. Moreover, the
Plaintiff does not present any evidence that Mr. Bohm’s rate of $1,000 per hour
has been approved. The evidence indicates, from a Minute Order in 2019, that
the rate of $750 per hour was approved.
The Court finds that the requested
rates are slightly excessive. Plaintiff argues Defendant has failed to present
evidence to support its position that Plaintiff’s requested hourly rate is
unreasonable. This evidence was presented by Plaintiff in the Supplemental
Declaration of Boucher. In Exhibit A, in their own chart, the hourly rates are
as follows: Bohm $900, Ortiz $300 and Boucher $500. Moreover, while Mr. Bohm is a highly
accomplished trial attorney, after reviewing the approximately 1,390 entries
completed by Mr. Bohm, 882 are for emails. Mr. Bohm may be entitled to a higher
trial rate, but it appears that such a rate is unreasonable for reviewing and
composing emails.
As such, the rate for Mr. Bohm
will be reduced to $900, Ortiz to $300 and Bouchner to $500. The Court determines the $450 hourly rate
requested for Ciarimboli reasonable.
Lodestar Multiplier
Plaintiffs
seek a 2.0 lodestar multiplier because an excellent outcome was obtained, the
risk posed by the litigation, the difficulty of the case, the delay in payment,
the preclusion of other work, and public policy. Defendant contends a multiplier is not
necessary and seek a negative multiplier.
Relevant
factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
Based on
the record, and the Plaintiff’s motion, the Court finds that a multiplier is not
appropriate. The Bohm declaration indicates that his firm was successful in
multiple employment cases, obtaining six figure verdicts on multiple occasions.
(Dec. Bohm 10-29.) The complaint alleged eight causes of action based on FEHA
violations, but nothing indicates that this was a novel case. Additionally,
Plaintiff merely states that it could have worked on other matters, but does
not indicate that it turned down other matters. However, as Plaintiff argues,
the matter was based on contingency and there is always an inherent risk when
representing clients on a contingency basis. Moreover, as indicated in Ortiz’
Declaration, although Defendant litigated to the very end, the uncertainty of
liability was significantly diminished following the County HR specialist
Stacey Simpson’s deposition testimony. As Ortiz declared, “I, personally, have
never worked on an employment case where the employer stipulated to liability.”
(Ortiz. Decl. ¶¶ 18, 24.) Thus, although Plaintiff’s vindicated important
rights for Plaintiff, they were compensated for their skill as reflected in their
hourly rate and authorizing compensation for significant trial preparation and support
staff. In other words, the Court has already accounted for this in other areas
of the fee award. Therefore, a
multiplier is not warranted.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion for Attorneys’ Fees is GRANTED in the following
reduced rate.
Bohm 783.4 hours X $100/hr =$78,340
Ortiz 533. 7 hours X $150/hr =$160,110
Boucher 727.5 hours X $150/hr =$109,125
Motion for Attorney’s Fees =$20,00-
Reply =3,000
___________
Net Reduction =$370,575
Attorney Lodestar $1,561,945-370,575=$1,191,370
Total paralegal Award =$107,
647.50
Total Fees Award $1,191,370
+ $107,647.50=$1,299,017.50
Award Payable within 45 days of service of this order.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: October
4, 2022 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court