Judge: Walter P. Schwarm, Case: 30-2019-01065869, Date: 2022-09-06 Tentative Ruling

Plaintiff’s (Brenda Solis) Motion for Attorneys’ Fees (Government Code § 12965(b)) (Motion), filed on 4-12-22 under ROA No. 189, is GRANTED as set forth below.

Plaintiff’s Objections to Defendant’s Declaration of David Libman filed on 8-29-22 under ROA No. 207:  The court OVERRULES Objection Nos. 1, 2, and 3.  The court SUSTAINS Objection Nos. 4, 5, 6, 7, 8, 9, and 10 as immaterial to the court’s decision.

Government Code section 12965, subdivision (b)(6), provides in part, “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Chavez  v. City of Los Angeles (2010) 47 Cal.4th 970, 985 (Chavez), states, “This court has stated that ‘[i]n deciding whether to, and how to, award fees under section 12965, subdivision (b), courts will look to the rules set forth in cases interpreting [Code of Civil Procedure] section 1021.5.’ [Citations.]  Under Code of Civil Procedure section 1021.5, if a court determines that attorney fees should be awarded, computation of those fees is based on the lodestar adjustment as set forth in Serrano v. Priest (1977) 20 Cal.3d 24, 141 Cal.Rptr. 315, 569 P.2d 1303. [Citation.]  Using that method, the trial court first determines a touchstone or lodestar figure based on a careful compilation of the time spent by, and the reasonable hourly compensation for, each attorney, and the resulting dollar amount is then adjusted upward or downward by taking various relevant factors into account. [Citations.]  When using the lodestar method to calculate attorney fees under the FEHA, the ultimate goal is ‘to determine a “reasonable” attorney fee, and not to encourage unnecessary litigation of claims that serve no public purpose either because they have no broad public impact or because they are factually or legally weak.’ [Citation.]” (Footnote 6 omitted.)

PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM), explains, “As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘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.’ [Citation.]  The reasonable hourly rate is that prevailing in the community for similar work. [Citation.]”  EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774 (EnPalm), explains, “The trial court has broad discretion to determine the amount of a reasonable fee, and the award of such fees is governed by equitable principles. [Citation.]  The first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer's hourly rate. ‘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.’ [Citation.] In short, after determining the lodestar amount, the court shall then ‘ “consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.” ’ [Citations.] The factors to be considered 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. [Citation.]  The ‘necessity for and the nature of the litigation’ are also factors to consider. [Citation.]” (Italics in EnPalm.)  “In referring to ‘reasonable’ compensation, we indicated that that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]”  (Ketchum v. Moses (Ketchum) (2001) 24 Cal.4th 1122, 1132 (Ketchum); Italics in Ketchum.)  Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322 (Alnor), provides, “ ‘To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.’ [Citation.]”  Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1398 (Bernardi), provides, “As stated in Weber v. Langholz . . .  ‘The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel's declaration unsubstantiated by time records and billing statements. Although a fee request ordinarily should be documented in great detail, it cannot be said in this particular case that the absence of time records and billing statements deprived the trial court of substantial evidence to support an award; we do not reweigh the evidence.’ [Citation.]”

Syers Properties III, Inc. v. Rankin (Syers) (2014) 226 Cal.App.4th 691, 698–700 (Syers) states, “The trial court did not abuse its discretion in accepting defense counsel's computation of attorney hours as hours reasonably spent working on the case. It is well established that ‘California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. [Citations.]’ [Citations.] . . . [¶] ‘Because time records are not required under California law . . ., there is no required level of detail that counsel must achieve. See, e.g., PLCM Group[, supra, 22 Cal.4th at p.] 1098, 95 Cal.Rptr.2d 198, 997 P.2d 511 (“We do not want ‘a [trial] court, in setting an attorney's fee, [to] become enmeshed in a meticulous analysis of every detailed facet of the professional representation. It . . . is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps dwarfing the case in chief,’ ” quoting Serrano v [.] Unruh (Serrano IV) (1982) 32 C[al.]3d 621, 642 [186 Cal.Rptr. 754, 652 P.2d 985]). See, e.g., . . . Jaramillo v [.] County of Orange (2011) 200 [Cal.App.] 4th 811, 830 [133 Cal.Rptr.3d 751] (noting that records included very general descriptions, e.g., ‘trial prep,’ ‘T/C-Client’); City of Colton v [.] Singletary (2012) 206 [Cal.App.] 4th 751, 784 [142 Cal.Rptr.3d 74] (declaration stating time spent on various activities); [citation].’ [Citation.]” (Footnotes 3, 4, and 5 omitted.) 

Prevailing Party:

First, the court must identify the prevailing party.  Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 562-563 (Bustos), provides, “By statute, the ‘prevailing party’ in a FEHA action may be awarded reasonable attorney fees. [Citations.] Because FEHA does not define the term ‘prevailing party,’ prevailing party status is determined in this context ‘based on an evaluation of whether a party prevailed “ ‘on a practical level,’ ” and the trial court's decision should be affirmed on appeal absent an abuse of discretion.’ [Citation.] In applying this standard, the trial court must identify the prevailing party ‘by analyzing the extent to which each party has realized its litigation objectives.’ [Citation.]”  Beaty v. BET Holdings, Inc. (2000) 222 F.3d 607, 612 (Beaty), explains, “To say that California permits such reduction based on results obtained in an FEHA case is not, however, to say that state law favors decreasing lodestar fees based on the amount of damages received as compared to that sought. Rather, under the FEHA fees are not ‘limit[ed] to a percentage of the plaintiff's recovery,’ and ordinarily, “the attorney who takes [an FEHA] case can anticipate receiving full compensation for every hour spent litigating a claim. . . .” [Citation.] Only in the unusual case in which there are ‘special circumstances [which] render such an award’—that is, an award of the full lodestar ‘for all hours reasonably spent’—‘unjust’ does California FEHA law permit a lodestar reduction for results obtained. [Citations.] [¶] This high threshold for triggering decreases due to limited success reflects the values underlying the award of attorneys' fees in FEHA and other civil rights cases. Such cases vindicate important public interests whose value transcends the dollar amounts that attach to many civil rights claims. Fee awards ensure that neither financial imperatives nor market considerations raise an insurmountable barrier that prevents attorneys from litigating meritorious cases, and even a relatively small damages award ‘contributes significantly to the deterrence of civil rights violations in the future.’ [Citation.] In short, ‘the purpose behind the [FEHA] fee provision was to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate a policy . . . considered of the greatest importance.’ [Citations.]” (Italics in Beaty.) (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320–321, states, “While we are not bound by decisions of the lower federal courts, even on federal questions, they are persuasive and entitled to great weight. [Citation.].”)

Here, Plaintiff only prevailed on the causes of action for failure to engage in the interactive process and failure to prevent discrimination and/or retaliation. (Judgment (Judgment) filed on 2-14-22 under ROA No. 178.)  The jury did not find liability against Defendant on any of the other causes of action pursued by Plaintiff. (Judgment)  At trial, Plaintiff requested $76,800.00 for past lost wages, $200,000.00 for past noneconomic damages, and $100,000.00 for future noneconomic damages. (Libman Decl., ¶ 32 and Exhibit 32 (Trial Transcript; 33:15-36:16.)  The court notes that Defendant has provided a rough trial transcript.  It does not appear that the parties dispute the accuracy of the rough trial transcript in terms of Plaintiff’s statements to the jury as to Plaintiff’s request for damages.).)  Plaintiff requested $376,800.00 in compensatory damages.  The jury awarded $30,000.00 to Plaintiff for past noneconomic loss. (Judgment.)  The jury found that Plaintiff had not proved by clear and convincing evidence that Defendant engaged in conduct amounting to malice, oppression, or fraud. (Judgment.) 

Defendant’s Opposition to Plaintiff’s Motion for Attorney Fees (Opposition), filed on 8-23-22 under ROA No. 195, does not appear to dispute that Plaintiff was the prevailing party.  (Opposition; 4:11-6:23.)  Rather, the Opposition requests the court to reduce an award of attorney’s fees because “. . . Plaintiff’s limited recovery . . . represents a limited level of success in a non-broad case that justifies a reduced fee award.” (Opposition; 6:21-23.)  The jury did not find for Plaintiff as to all of the forms of disability discrimination arising from pregnancy alleged by Plaintiff. (Judgment.)  The jury, however, found that Defendant discriminated against Plaintiff based on her disability arising from pregnancy in the form of failing to engage in the interactive process. (Judgment.)  The court recognizes that the jury did not award Plaintiff the amount of damages requested by Plaintiff.  Although Plaintiff did not prevail on all of the forms of discrimination alleged by Plaintiff and did not recover the amount Plaintiff requested by the jury, the court finds that Plaintiff is the prevailing party under Government Code section 12965, subdivision (b).  The court finds, however, that Defendant prevailed on a practical level.  Plaintiff prevailed on a form of disability discrimination and the jury awarded damages to Plaintiff.  Plaintiff achieved Plaintiff’s litigation objective by bringing a meritorious action against Defendant for a form of discrimination based on disability arising from pregnancy.

Reasonable Hourly Rate:

The Opposition contends that the hourly rates requested by Plaintiff’s attorneys are inflated. (Opposition 7:14-10:2.)  The declaration from Jonathan Ebrahimian indicates that his hourly rate of $650.00 is a reasonable rate based on his experience with employment-related disputes and the Laffey Matrix. (Ebrahimian Decl., ¶ 3.)  The declaration from Jonathan E. Howell indicates that his hourly rate of $700.00 is reasonable based on his experience as a civil litigator and the Laffey Matrix. (Howell Decl., ¶¶ 2-5.)  Plaintiff also submits the declaration of Peter A. Javanmardi which indicates that the rates requested by Mr. Ebrahimian and Mr. Howell are “. . . well within the range of prevailing market rates of attorneys with comparable skills and experience.” (Javanmardi Decl., ¶¶ 6 and 8.)   Defendant’s attorney billed at an hourly rate of $335.00. (Libman Decl., ¶ 4.)  Based on the declaration form Mr. Ebrahimian, Mr. Howell, Mr. Javanmardi, Mr. Libman, the court finds that an hourly rate of $525.00 is reasonable.

Billing Records from Plaintiff’s Attorneys:

The Opposition challenges some of the entries contained in the billing records submitted by Mr. Ebrahimian and Mr. Howell are “. . . duplicative, excessive, noncontributory and clerical time . . . .” (Opposition; 11:22-12:2.)

In light of the above rules, the court reviewed the billing entries submitted by Plaintiff’s. attorneys.   (Ebrahimian Decl., ¶ 4 and Exhibit 1; Howell Decl., ¶ 6 and Exhibit 2.) and Exhibit 1, and 1-10-20 Ehrlich Decl., ¶ 3 and Exhibit 1.)  After reviewing the records, the court reduces the hours requested by Mr. Ebrahimian from 357.85 hours to 340.25 hours.  The court reduces the hours requested by Mr. Howell from 184.05 hours to 180.05.  The court finds that these reductions represented entries that are excessive or duplicative as to the tasks performed.  Therefore, the court awards attorneys’ fees in the amount of $273,257.50 in favor of Plaintiff and against Defendant.

Request for Reduction:

Vines v. O’Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 183 (Vines), states, “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?’ [Citations.]”

As to the first inquiry, Defendant “. . . does not dispute that the verdict for Plaintiff on failure to engage in interactive process and failure to prevent discrimination and/or retaliation involved many of the same facts as Plaintiff’s other claims.” (Opposition; 5:19-21.)

As to the second inquiry, the court finds that Plaintiff achieved a level of success that shows that the hours expended by Plaintiff’s counsel were reasonable.  It appears that there was minimal discovery, and court’s file does not reflect law and motion activity except for motions-in-limine.  Therefore, the court finds that the hours expended by Plaintiff’s counsel were reasonable because factual overlap between the cause of action prevailed upon by Plaintiff and Plaintiff’s other causes of action. 

Request for a Multiplier:

Ketchum v. Moses, supra, 24 Cal.4th 1122, 1132, explains, “Under Serrano III, the 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 of 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. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ [Citation.]”  “The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous.  Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.”  (Id., at p. 1138.)

The court DENIES Plaintiff’s request for a multiplier.  The court finds that this case was not novel or difficult in terms of the questions involved.  The issue was whether Defendant whether Plaintiff voluntarily left her employment with Defendant after her approved leave or whether Defendant engaged in conduct amounting to discrimination.  Although all of the attorneys displayed skill at the trial, this factor is not significant because the issues involved were not complex or difficult.  The declarations from Mr. Ebrahimian and Mr. Howell indicate they had to “. . . forego other potential clients . . .,” but does not identify how many clients they lost since the filing of this case in 2019 as a result of their work on this case. (Ebrahimian Decl., ¶ 8; Howell Decl., ¶ 7.)  This case was a contingency case. 

In considering the above factors, the court notes that this case was not a complex case.  This case did not present difficult or novel issues, and Plaintiff has not sufficiently shown that this case precluded Plaintiff’s attorneys from other employment during the pendency of this case.  Therefore, the court DENIES Plaintiff’s request for a multiplier.

Based on the above, the court GRANTS Plaintiff’s Plaintiff’s (Brenda Solis) Motion for Attorneys’ Fees (Government Code § 12965(b)), filed on 4-12-22 under ROA No. 189, in the amount of $273,257.50.

Plaintiff is to give notice.