Lawzilla Additional Information: Defendants are represented by Brian Soriano

CIV509729 MING-HSIANG KAO VS. JOY HOLIDAY, ET AL.

MING-HSIANG KAO JOY EXPRESS, INC.
ROBERTO RIPAMONTI BRIAN EDWARD SORIANO

JOY HOLIDAY, JOY EXPRESS, INC., JESSY LIN & HARRY CHEN’S MOTION TO VACATE JUDGMENT TENTATIVE RULING:

Defendants JOY HOLIDAY, JOY EXPRESS, INC., JESSY LIN, HARRY CHEN’s (collectively “Defendants”) motion to vacate judgment is DENIED. The Temporary Restraining Order, issued and filed on June 25, 2018, is extinguished. The judgment entered pertains only to appellate fees and costs, and the Court retains jurisdiction on the remanded issues. (Kao v. Holiday (2017) 12 Cal.App.5th 947, 963 (“The matter is remanded to the trial court for entry of judgment in favor of Kao on his statutory wage claims, consistent with the views expressed in this opinion. On remand, the court shall assess unpaid wages and overtime pay, damages for failing to provide itemized wage statements, waiting time penalties, prejudgment interest, costs of suit and reasonable attorney fees. (Lab. Code, §§ 203, subd. (a), 226, subd. (e), 1194, subd. (a).)”) (“Kao”).)

Judgment for appellate fees and costs was properly entered following the court granting Plaintiff’s Motion for Attorney Fees and Costs on Appeal, issued on October 27, 2017 (“10/27 Order”). (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter, Jun. 2018 Update) ¶ 9:344.22.)

This motion is a collateral attack and an improper attempt at reconsideration of the 10/27/17 Order. In opposing the underlying motion, Defendants never raised the argument that appellate fees and costs were not recoverable against defendants JOY EXPRESS, INC., JESSY LIN, HARRY CHEN. Defendants conceded the opposite – that Plaintiff was entitled to recovery against Defendants appellate fees and costs.

Defendant [sic] is the prevailing party on appeal and is entitled to fees and costs for that appeal. This point is not in dispute. However, defendants do challenge the amount of fees claimed and the hours expended by Kao’s attorneys on appeal. They seek $90,900 in fees based on a claim of 181.8 billable hours spent at a rate of $500/hr. Furthermore, plaintiff’s counsel seeks a 1.5 multiplier based on the “complexity of the case” and the “novel issues” presented; bringing the total amount of fees requested to $136,350.00.

(Opp. to Pl. Motion for Fees and Costs, filed Oct.16, 2017, p. 3:712.) Although Defendants refers to “Defendant” being the prevailing party on appeal, it is apparent this is a scrivenor’s error and Defendants meant Plaintiff. Defendants only argued that the appellate fees and costs sought were unreasonable on three grounds: (1) Plaintiff’s claim regarding the complexity of the appeal was overstated (id. at p. 3:20 – 5:14); (2) Plaintiff sought fees for an unreasonable amount of time (id. at p. 5:15 – 6:18); (3) Plaintiff counsel’s hourly rates are unreasonable (id at p. 6:19 – 7:2.)

Defendants cannot now raise this argument for the first time in this motion to vacate, and it is waived. And to the extent this is a motion for reconsideration, defendants have not demonstrated any “new or different facts, circumstances or law” than those before the court at the time of the original ruling.” (Code Civ. Proc. § 1008, subd. (a); Weil & Brown, supra, at ¶ 9:328.)

Even if the court were to consider vacating judgment of appellate fees and costs, it would be a futile act as it would not disturb the 10/27 Order against Defendants. (See Reverend Mother Pauline v. Bray (1959) 168 Cal.App.2d 384, 386–387 (“It would have been a futile act for the court to have granted plaintiffs’ motion to vacate and annul the judgment of dismissal and the precedent order sustaining defendant’s demurrer without leave to amend. That would merely have reinstated the complaint which, as we have said, did not state a cause of action and could not have been amended to state one.”).)

Lastly, the First District did not limit recovery of appellate fee and costs to defendant Joy Holiday. “Appellant Kao shall recover costs incurred on appeal upon timely application in the trial court. (Cal. Rules of Court, rule 8.278.)” (Kao, supra, 12 Cal.App.5th at p. 963.)

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, Plaintiff is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.