Case Number: BC673644 Hearing Date: February 28, 2020 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MELISSA D. SANCHEZ, etc.,

Plaintiff,

vs.

SUK H. TSANG, etc., et al.,

Defendants.

CASE NO.: BC673644

[TENTATIVE] ORDER RE:

MOTION FOR ATTORNEYS’ FEES

Date: February 28, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Suk H. Tsang (“Tsang”) and Esther L. Szeto (“Szeto”) dba Esther’s Nest Children’s School

RESPONDING PARTY: Plaintiff Melissa D. Sanchez

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s complaint arises from her alleged wrongful termination from her employment at Defendant Esther’s Nest Children’s School. Plaintiff filed a complaint alleging causes of action for: (1) failure to pay overtime compensation in violation of California Labor Code, Sections 510 and 1194; (2) failure to pay wages at time of termination in violation of California Labor Code, Sections 201-203; (3) failure to provide accurate wage statements in violation of California Labor Code, Section 226; (4) failure to provide meal and rest periods in violation of California Labor Code, Sections 226.7 and 512; (5) discrimination and harassment based on disability/perceived disability and medical leave; (6) wrongful termination in violation of public policy; (7) retaliation, California Government Code, Section 12940(h) and California Labor Code, Section 1100 et seq.; and (8) unfair business practices in violation of California Business and Professions Code, Section 17200.

On August 30, 2019, the Court granted Defendants’ motion for summary judgment in its entirety. On October 11, 2019, the Court entered judgment of dismissal with prejudice in favor of Tsang and Szeto and the Court indicated that Plaintiff would take nothing from Tsang or Szeto. Moreover, the Court awarded Tsang and Szeto costs of suits.

Defendants brought a motion for attorneys’ fees claiming that Plaintiff’s lawsuit was frivolous and without foundation. Defendants request attorneys’ fees in the amount of $35,524.50.

Defendants assert that: (1) Plaintiff’s fifth cause of action was frivolous and without foundation; (2) Plaintiff’s sixth cause of action was frivolous; (3) Plaintiff’s California Labor Code causes of action were frivolous; and (4) Defendants’ requested attorneys’ fees are reasonable.

Plaintiff opposes Defendants’ motion on the grounds that: (1) Defendants are not entitled to costs because Defendants failed to prove that Plaintiff acted in bad faith as required under California Labor Code, Section 218.5; (2) Defendants are not entitled to costs as Defendants failed to prove that Plaintiff’s claims were frivolous, unmeritorious, or groundless; (3) Plaintiff should not be required to pay Defendants’ costs because she does not have the financial ability to pay; (4) she is destitute and earning minimum wage; and (5) Defendants’ requested costs are excessive, unreasonable, and unnecessary.

Initially, the Court finds numerous issues with Plaintiff’s opposition. Defendants’ motion is not one for costs but is a motion for attorneys’ fees. While Defendants did file a memorandum of costs, Plaintiff has not filed a motion to tax such costs. Additionally, Plaintiff has failed to rebut Defendants’ argument that they are entitled to the recovery of attorneys’ fees based on Plaintiff’s fifth and sixth causes of action, as well as Plaintiff’s claim of California Labor Code violations being frivolous and meritless. A party’s “[c]ontentions are waived when a party fails to support them with reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Moreover, while Plaintiff’s opposition asserts that she lacks the financial ability to pay costs and she is destitute, Plaintiff has failed to provide a declaration indicating such facts. Thus, Plaintiff only makes mere argument in connection with her claimed financial status without supporting evidence and the Court does not find Plaintiff’s contentions to be persuasive. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

On February 7, 2020, the Court continued the hearing on Defendants’ motion for attorney’s fees to Friday, February 28, 2020, due to the Court needing additional details in order to rule on Defendants’ motion for attorneys’ fees. The Court ordered Defendants to file and serve a supplemental declaration by the close of business on Friday, February 14, 2020 because: (1) the Court was not able to ascertain who specifically worked on each task in this action and their qualifications; and (2) the Court could not ascertain the hourly rate or hours worked by each person who worked on this action. Plaintiff was given the opportunity to oppose Defendants’ supplemental declaration by filing and serving a supplemental declaration by the close of business on Friday, February 21, 2020.

Plaintiff failed to file and serve a supplemental declaration by the close of business on Friday, February 21, 2020 and no courtesy copy of such declaration was provided to the Court.

DISCUSSION

In a FEHA case, a court can “award attorneys’ fees and costs to prevailing defendants if the [plaintiff’s FEHA] lawsuit was frivolous, unreasonable, or totally without foundation when brought.” (Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 239.) “A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.) “FEHA declares it an unlawful employment practice for any employer because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, gender, or gender identity, general expression, age, or sexual orientation of any person . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1219.) “The statute also prohibits employers from retaliating against employees for engaging in protected activity—i.e., for discharg[ing], expel[ing], or otherwise discriminat[ing] against any person because the person has opposed any practices forbidden under this part.” (Id.) “[R]etaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.” (Id. at 1230.) “Government Code section 12940, subdivision (h), does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1528.)

Issue No. 1: Frivolousness of Plaintiff’s Fifth and Sixth Causes of Action

Defendants assert that Plaintiff’s fifth cause of action was groundless and was without foundation. In the fifth cause of action the complaint alleges that: (1) on April 10, 2016, Plaintiff notified Defendants that she was suffering from a physical disability and needed time off of work to receive medical treatment and therefore was forced to go on a medical leave of absence (Complaint at ¶ 46); (2) Defendants begrudgingly allowed Plaintiff to exercise her family medical rights, however, when she attempted to return to work Defendants informed her that she was no longer an employee and had been terminated (Id. at ¶ 47); and (3) Plaintiff advised Defendants that their actions were unfair, discriminatory, retaliatory, and punitive based on Plaintiff taking a medical leave and exercising her disability rights. (Id. at ¶ 48.)

Defendants present the declaration of their counsel, Ray Hsu (“Hsu’), in support of their motion for attorneys’ fees. Defendants present evidence from Plaintiff’s deposition taken on January 30, 2019 at which Plaintiff testified that: (1) after Szeto called the hospital to find out she was not treated for a dog bite and there was no car accident, she does not recall whether Szeto was angry (Hsu Decl., Exhibit A at 70:10-14); (2) Szeto gave her paperwork saying she was terminated and Szeto indicated the reason Plaintiff was being terminated was because she lied about the incident (Id., Exhibit A at 70:18-71:1); (3) Plaintiff did testify that she did in fact lie about her incidents regarding the dog bite and car accident to Szeto (Id., Exhibit A at 71:1-7); and (4) the reason for her termination at that time was due to her lies. (Id.)

Defendants present evidence that: (1) Plaintiff testified that instead of telling Defendant she had pink eye, she lied and told them she had a dog bite (Id., Exhibit A at 72:10-12); (2) Plaintiff admitted that she sent the picture of an injured arm and hand to Defendants, but that the purported injured hand and arm was not hers (Id., Exhibit A at 73:25-74:3); and (3) Plaintiff admitted that she got the pictures off the internet. (Id., Exhibit A at 73:7-10.)

The Court finds that based on Plaintiff’s testimony at her deposition where she: (1) indicated she lied about the need for medical leave; (2) admitted that the reason for her termination was due to her lies; and (3) admitted to sending false pictures of injuries to Defendants warrants the finding under Williams that Plaintiff’s fifth and sixth causes of action became frivolous and groundless yet she continued to litigate this action. Based on Plaintiff’s deposition testimony, she was not shielded from termination under California Government Code, Section 12940(h) and as such once her deposition testimony was taken the retaliation cause of action became groundless, but Plaintiff continued litigating this action. Moreover, Defendants prevailed against Plaintiff on her seven remaining causes of action via their prevailing motion for summary judgment.

The Court finds that under Scott and Williams, Defendants are entitled to attorneys’ fees.

Due to the Court’s finding that Plaintiff’s fifth and sixth causes of action became frivolous, the Court need not address Defendants’ argument that Plaintiff’s Labor Code causes of action were frivolous. Defendants have shown a proper basis for attorneys’ fees via Plaintiff’s FEHA causes of action.

Issue No.2: Reasonableness of Claimed Attorneys’ Fees

A prevailing defendant in a FEHA action may be awarded reasonable attorneys’ fees. (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 110.) A party seeking attorney’s fees has the burden of showing that such sought fees are reasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) “[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “[T]he verified time statements of . . . attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) Where a party is challenging the reasonableness of attorneys’ fees as excessive that party must “attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.) With respect to awarding attorneys’ fees “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.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698.) “Because time records are not required under California law . . . there is no required level of detail that counsel must achieve.” (Id. at 699.) A court awards attorneys’ fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

Initial Declaration of Ray Hsu

In his initial declaration lodged with the moving papers, Defendants’ counsel, Ray Hsu (“Hsu”), declares that: (1) his hourly rate is reasonable, and the hours expended in this case are reasonable (Hsu Decl. at ¶ 9); (2) him and his firm spent about 59 hours on this case and most of the hours were devoted to the FEHA causes of action because Labor Code claim are mostly rebuttable by time records as documents speak for itself (Id. at ¶ 8); (3) he has been practicing for more than eight years and has extensive experience representing employees and employers at trial and summary judgment proceedings (Id. at ¶ 9); (4) his hourly rate is typically $350.00 and is the market rate for attorneys of his experience practicing in the same geographic area (Id.); and (5) for this case, he gave Defendants a discounted rate of $250.00 per hour. (Id. at ¶ 10.) Hsu’s declaration also attaches invoices from his firm (Id. at Exhibit C), as well as invoices by Defendants’ former counsel, Hackler Flynn & Associates (“HFL”). (Id. at Exhibit D.) Hsu’s declaration also attaches Defendants’ memorandum of costs. (Id. at Exhibit E.)

Supplemental Declaration of Angela C. Serranzana

Angela Serranzana (“Serranzana”) declares that: (1) she graduated from Georgetown Law School in May of 2005 (Serranzana Decl. at ¶ 4); (2) she was admitted to the State Bar of California in November of 2010 and has practiced in the state of California in the area of Labor & Employment from November 2010 until the present (Id. at ¶ 5); (3) she began working for HFL in November 2017 (Id. at ¶ 6); (4) the bulk of her practice is representing employers in wage & hour claims and employment discrimination claims before California courts and administrative agencies (Id. at ¶ 7); (5) at the time of the instant action, HFL’s hourly rate was $345.00 for all attorneys in the firm and the paralegal rate was $165.00, and at the time of this case in 2018, such hourly rates for both attorneys and paralegals were reasonable in the Los Angeles area based on their experience (Id. at ¶ 8); (6) up to the time the substitution of counsel was filed on August 13, 2018, her firm reasonably expended 49.1 attorneys hours and 1.1 paralegal hours in reviewing payroll and personnel records, filing a responsive pleading, engaging in settlement discussions, and engaging in the initial stages of discovery (Id. at ¶ 9); and (7) these hours are broken down more fully in the HFL invoices which she understands were provided to the Court with Defendants’ motion for attorneys’ fees. (Id.)

Supplemental Declaration of Mihn D. Phan

Counsel for Defendants, Mihn D. Phan (“Phan”), declares that: (1) he spent 36.7 hours handling Defendants’ case (Phan Decl. at ¶ 2); (2) he is an associate at the Law Offices of Ray Hsu & Associates (Id. at ¶ 1); (3) the hours he spent in this case include drafting discovery responses, propounding written discovery, drafting Defendants’ summary judgment motion, and other law and motion work (Id. at ¶ 3); (4) he graduated from Pepperdine Law School in 2017 and has practiced as a civil litigator in California since his admission to the State Bar of California in December 2017 (Id. at ¶¶ 4-5); (5) he has represented nation-wide medical institutions, hospitals, clinics, and other Fortune 500 companies, as well as litigating state and federal cases across the United States (Id. at ¶ 6); (6) in September 2018, he joined the Law Offices of Ray Hsu & Associates, and began practicing almost exclusively in the area of labor and employment law (Id. at ¶ 7); (7) since joining the firm, he has represented numerous employers in class action and PAGA wage and hour claims (Id. at ¶ 8); and (8) his current billing rate is $250.00 per hour and these rates are comparable to, if not less than, those charged by other attorneys in the community practicing litigation in the same area. (Id. at ¶ 9.)

Supplemental Declaration of May T. To

Counsel for Defendants, May T. To (“To”), declares that: (1) To’s involvement in the case is limited to an appearance made at the hearing on Defendants’ motion for summary judgment on August 30, 2019 in Department 56, and the time expended on this hearing was 2.6 hours which was reasonable and includes the roundtrip commute time from Alhambra to Los Angeles (To Decl. at ¶ 3); (2) To’s hourly rate is $250.00 per hour and the total attorneys’ fees incurred is $650.00 (Id.); (3) To graduated magna cum laude from Southwestern Law School in May 2015 and has significant experience representing clients in employment cases in both wage-and-hour claims and Fair Employment Housing Act claims (Id. at ¶ 4); (4) To’s hourly rate of $250.00 is the market rate for attorneys of To’s experience practicing in the same geographic area (Id. at ¶ 5); and (5) To was admitted to the State Bar in December 2015 and has been actively practicing law since then. (Id. at ¶ 4.)

Supplemental Declaration of Ray Hsu

In his supplemental declaration, Ray Hsu (“Hsu”), declares that: (1) he spent 20.6 hours handling Defendants’ case (Hsu Supp. Decl. at ¶ 2); (2) the hours he spent on this case include conducting a deposition of Plaintiff, maintaining communications with Defendants, negotiating settlement with opposing counsel, and supervising his associates for various tasks such as motion drafting and court appearances (Id. at ¶ 3); (3) for this case he gave Defendants a discounted rate of $250.00 per hour and his hourly rate and the hours expended in this case are reasonable (Id. at ¶¶ 4-5); (4) he was admitted to the State Bar of California in 2011 and has been practicing law for more than eight years primarily in labor and employment law (Id. at ¶ 5); (5) his hourly rate is typically $350.00 per hour and that is the market rate for attorneys of his experience in the same geographic area (Id.); (6) he has litigated well over 300 wage-and-hour claims and has extensive experience representing employers and employees at trial and summary judgment motion proceedings (Id.); (7) when he substituted in this case for Defendants, Defendant Suk H. Tsang who is the husband of Defendant Esther Szeto had just passed away (Id. at ¶ 6); and (8) as a returning client, and a client who is suffering from economic plight, he gave Defendants a discounted rate of $250.00 an hour and the requested rate is more than reasonable. (Id. at ¶ 10.)

The Court finds that Defendants’ evidence with respect to the attorneys and paralegals who worked on this matter establishes the sufficiency of those hourly rates and work performed by such parties. The supplemental declarations adequately apprise the Court of the reasonableness of the hourly rates, work performed, and the accompanying invoices attached to Hsu’s initial declaration sufficiently informs the Court of the work that was completed on this matter. (Hsu Decl. at Exhibits C and D.)

The Court, however, finds that Defendants’ motion indicates that HFL performed 52.6 hours of work on this action while Serranzana’s declaration indicates that 49.9 hours of work were done by HFL attorneys and 1.1 hours of work done by HFL paralegals. As such, the Court finds that based on the declaration of Serranzana, HFL worked a total of 51.0 hours on this action. As such, the Court will subtract $552.00 from Defendants’ claimed $35,524.50 in requested attorneys’ fees. This $552.00 amount equals 1.6 hours of work—the difference between the hours claimed in the motion versus Serranzana’s declaration—at the rate of $345.00 per hour.

The burden now shifts to Plaintiff to establish the unreasonableness of Defendants’ claimed attorneys’ fees.

Plaintiff presents no evidence to contradict the reasonableness of Defendants claimed attorney’s fees. Plaintiff failed to submit a supplemental declaration to the Court by the required deadline. Plaintiff failed to lodge a declaration in connection with her opposition papers. Plaintiff has thus presented no evidence to the Court with respect to the unreasonableness of Defendants’ requested attorneys’ fees and has such failed to meet her burden under Premier to establish unreasonableness.

The Court exercises its discretion under PLCM and GRANTS Defendants’ motion for attorneys’ fees. The Court awards reasonable attorneys’ fees to Defendants in the amount of $34,972.50.

Moving parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 28th day of February 2020

Hon. Holly J. Fujie

Judge of the Superior Court