Case Name:   Richard Guerra v. Culinart of California, Inc.

Case No.:       1-13-CV-255067

Motion by Defendant Culinart of California for Reasonable Attorney Fees and Costs

            By order filed July 1, 2014, this court (Hon. Arand) dismissed Plaintiff’s appeal with prejudice and ordered that Plaintiff must “pay Defendant reasonable costs and attorney’s fees as the prevailing party pursuant to Labor Code section 98.2(c), as shall be determined after Defendant submits to this Court its bill of costs and motion regarding its attorneys fees.”  Defendant timely filed and served this motion by mail on July 11, 2014.  The last day for Plaintiff to oppose the motion wasAugust 6, 2014.

            In violation of Code of Civil Procedure section 1005(b), Plaintiff did not file opposition until August 12, 2014: the date a reply to an opposition would have been due.  A proof of service states that the opposition was served on August 11, 2014.  Plaintiff provides no explanation for the very tardy filing.  Defendant filed a reply on August 13, 2014, which the court has reviewed.  Although the court has the discretion to disregard untimely filings (CRC 3.1300(d)), the court will consider Plaintiff’s papers.

Plaintiff provides no statement under oath in support of his opposition.  Unsworn factual assertion in points and authorities are not evidence.  (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4^th 573, 578.)  However, even if Plaintiff’s factual assertions had been under oath, they would not be material.  Plaintiff’s argument that he would have won the underlying dispute if things had been different is of no moment on this motion.

Plaintiff relies on federal cases to argue that the court has discretion to deny fees altogether because of the payor’s limited financial resources.  However, Plaintiff has failed to provide any facts concerning ability to pay.  Indeed, in the record is the denial of Plaintiff’s request for a fee waiver for the stated reasons: “based on income”.  (Order of October 25, 2013, denying request for fee waiver.)

Plaintiff also argues that Defendant’s fees were “exorbitant” and “exaggerated”. Plaintiff’s generalized criticism of excessiveness is insufficient to meet his burden. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n (2008) 163 Cal.App.4^th 550, 564 (“In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”)

Accordingly, the motion is granted.  Plaintiff is ordered to pay to Defendant within thirty days of notice of this order the amount of $14,775.74 as and for reasonable attorney fees and costs.