Filed 7/14/20 Scudder v. Department of Transportation CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

TRACY SCUDDER,

Plaintiff and Appellant,

v.

DEPARTMENT OF TRANSPORTATION,

Defendant and Respondent.

B293859

(Los Angeles County

Super. Ct. No. BC590282)

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Victor E. Chavez, Judge. Affirmed.

Law Offices of Kyle Todd and Kyle Todd for Plaintiff and Appellant.

Jeanne E. Scherer, Chief Counsel, Jerald M. Montoya, Deputy Chief Counsel, and Tucker Wisdom-Stack for Defendant and Respondent.

I. INTRODUCTION

Plaintiff Tracy Scudder appeals from a postjudgment award of attorney fees in his favor, after judgment was entered against defendant the Department of Transportation at trial. Plaintiff contends that the trial court abused its discretion by refusing to apply a multiplier to his request for attorney fees. We affirm.

II. BACKGROUND

A. Underlying Action

Plaintiff sued defendant for racial harassment, racial discrimination, retaliation, and failure to prevent harassment, discrimination, and/or retaliation pursuant to the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). Trial commenced on February 27, 2018, and on March 9, 2018, a jury returned a verdict in favor of plaintiff and against defendant for racial harassment and failure to prevent racial harassment, but found for defendant on the claims of racial discrimination and retaliation. The jury awarded plaintiff $1 million in damages.

B. Motion for Attorney Fees

On June 11, 2018, plaintiff filed a posttrial motion for attorney fees pursuant to Government Code section 12965, subdivision (b). Plaintiff requested: for lead counsel, Kyle Todd, a rate of $500 per hour for 904.3 hours; for Maximilian Lee, an associate at the Law Offices of Kyle Todd, a rate of $400 per hour for 250.5 hours; for Zachary Ritter, a former associate at the Law Offices of Kyle Todd, a rate of $250 per hour for 40.7 hours; and for Victoria Rolon, a legal assistant at the Law Offices of Kyle Todd, a rate of $150 per hour for 197 hours. Plaintiff submitted documents that reflected the three lawyers and one legal assistant worked on this matter for a total of 1,392.5 hours over a period of three years, from June 15, 2015, to June 9, 2018. Plaintiff also requested that the trial court apply a multiplier of two to compensate counsel for the contingency nature of counsel’s representation, the firm’s preclusion of other employment, the difficulty of the questions involved, and the quality of the representation provided. In support of that request, counsel Todd declared: “Throughout the trial, and the three months of pre-trial proceedings that preceded it, we were largely unable to work on any other case or sign up new clients. We were also unable to resume new client intake as normal for a few months after the trial, as we worked desperately to catch up on other existing matters that fell behind because of this trial.”

Rolon declared: “This case took up a large portion of our firm’s time since I joined in early 2016, and by November 2017, as the first genuine trial date approached, our firm’s work on other matters went down significantly. From then through the end of trial on March 9, 2018, our firm was almost exclusively engaged in work on this case, at the expense of taking in new cases. For example, I typically provide the first-line intake of new case matters, and for the preparation of trial and during, we were telling prospective clients we were simply too busy to accept new cases at the firm.”

Defendant disputed the lodestar amount, contending that Todd’s and Lee’s hourly rates were unreasonably high and that the appropriate market rate was $360.27, based on the United States Attorney’s Office Attorney’s Fees matrix 2015–2018, adjusted for Los Angeles. Defendant also argued that: the litigation was not novel or difficult; counsel did not demonstrate extraordinary skill; and plaintiff’s argument about the consumption of time was not well-founded since undertaking any representation precludes time spent elsewhere.

C. Ruling

On August 22, 2018, the trial court conducted a hearing on plaintiff’s motion for attorney fees. Although the parties stipulated to the use of a certified shorthand reporter at the hearing, the record does not include a reporter’s transcript or a suitable substitute, such as an agreed or settled statement, of the hearing. (Cal. Rules of Court, rule 8.120(b).)

On September 11, 2018, the trial court issued its written ruling, awarding plaintiff a lodestar amount of $592,075, that is, the entire amount plaintiff sought, as reasonable attorney fees. The court concluded that plaintiff’s counsel’s bill rates were reasonable for the legal services provided. Specifically, the court concluded that Todd’s $500 per hour rate was reasonable “based on his experience and the facts showing that he is an exceptional attorney.” The court further found Lee’s $400 per hour rate to be reasonable. The court added that the rates were reasonable “based on the three years of litigation that occurred in this case,” and included “a substantial amount of discovery, including 17 depositions and discovery motions, three mediations, substantial trial preparation, and the trial.”

The trial court, however, declined to apply a multiplier. First, it found the case concerned workplace harassment and discrimination based on race for one plaintiff, which was not so unusual or complex that it required exceptional skill. The court further concluded that plaintiff’s attorneys did not display such exceptional skill that exceeded the quality of an attorney with comparable skill and experience. Plaintiff does not dispute these findings.

The trial court further found “[p]laintiff does not provide specific facts to demonstrate that his attorneys were precluded from other employment. For example, although . . . Rolon states . . . that, as the trial date approached, the [p]laintiff’s [counsel’s] firm was telling prospective clients that it was too busy to accept new cases, . . . Rolon provides no specific facts to show that the [p]laintiff’s [counsel’s] firm was precluded from accepting such a substantial amount of business that a multiplier should be applied.”

Regarding the contingency nature of the representation, the court stated, “although the [p]laintiff’s attorneys took this case based on a contingent fee retainer agreement, the above analysis . . . demonstrates that the [p]laintiff’s attorneys will be fully compensated for the time they spent on this case and this offers no grounds to award a multiplier.” Plaintiff timely appealed.

III. DISCUSSION

Defendant argues that plaintiff failed to submit an adequate record on appeal because there is no reporter’s transcript or an agreed or settled statement of the hearing on plaintiff’s motion. We agree.

“[I]it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 (Jameson); Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448.) “‘“A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’” (Jameson, supra, 5 Cal.5th at p. 609.)

We cannot adequately consider plaintiff’s contention that the trial court failed to consider certain factors at the hearing because plaintiff has failed to provide an adequate record on appeal. We therefore resolve the issue against him. (Jameson, supra, 5 Cal.5th at p. 609.)

Even if we were to consider the merits of plaintiff’s argument based on the record that we do have, we would affirm. Plaintiff’s argument that the trial court “refused to consider the relevant ‘contingency and delay factors’ present in this case, and upon that refusal denied [plaintiff’s] request to upwardly adjust his counsel’s fees,” is meritless. As plaintiff concedes, “the [court] explicitly recognized that ‘ . . . [p]laintiff’s attorneys took this case based on a contingent fee retainer agreement.’”

To the extent plaintiff contends the trial court was required, as a matter of law, to apply a multiplier, we disagree. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 [“the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof”].)

Finally, we also reject any argument by plaintiff that the trial court did not adjust the fee amount in any “manner to reflect the fact that the fair market value of legal services provided on [a contingent basis] is greater than the equivalent noncontingent hourly rate.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394–395.) The court rejected defendant’s request to lower counsel’s fees to the Los Angeles market rate as calculated by an attorney fee matrix, finding that the full rates sought by plaintiff’s counsel were reasonable. Further, the court found that counsel, who worked on a contingency basis, would be “fully compensated” by the lodestar amount. We presume the court concluded that its lodestar calculation already accounted for the contingent nature of the fee award. (See id. at p. 395 [“The contingency adjustment may be made at the lodestar phase of the court’s calculation or by applying a multiplier to the noncontingency lodestar calculation (but not both)”].)

The trial court was in the best position to evaluate the reasonableness of plaintiff’s requested attorney fees. We find the court did not abuse its discretion.

IV. DISPOSITION

The postjudgment order on attorney fees is affirmed. The Department of Transportation is entitled to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.