2012-00134724-CL-PA

Cheryl A Lang vs. John D Rogers

Nature of Proceeding:      Motion for Attorney Fees and Costs

Filed By:   Goodman, Karen M.

Petitioner Cheryl A. Lang’s (“Lang”) motion for attorneys’ fees and costs is GRANTED,
in part, and DENIED, in part.

The following procedural history is pertinent to this motion.  This is an attorney fee
dispute. In August 2012, Lang and Respondent, John Rogers (“Rogers”), appeared for
arbitration before the Sacramento County Bar Association. Rogers claimed that he
was entitled to $35,643.47 in legal fees, which Lang disputed. The panel issued an
award finding that Lang owed Rogers $6,107.67, rather than $35,643.47.   Lang
thereafter filed a petition to confirm the arbitration award.  In opposition to the petition,
Rogers argued that he had timely demanded binding arbitration before JAMS, which
Lang disputed.  As a result, the Court denied the Petition, stating that it was for JAMS
to determine whether arbitration was timely commenced and the effect of the JAMS
rules in that regard. (See 4/2/2013 Order.)  On September 20, 2013, that JAMS
arbitrator Hon. Fred K. Morrison issued a Decision on Jurisdiction to Conduct
Arbitration.  (See Lang Decl. Ex. N.)  The Decision found that Rogers’ demand for
arbitration was untimely, therefore, JAMS did not have jurisdiction to arbitrate the
matter and the Bar Association’s award was binding.  (Id.)  Lang subsequently filed the
Petition to Confirm Arbitration award and the instant motion for attorneys’ fees.

Lang seeks attorneys’ fees and costs pursuant B&P Code section 6203(c).  B&P Code
section 6203(c) provides “a court confirming . . . an award under this section may
award to the prevailing party reasonable fees and costs incurred in obtaining
confirmation . . . of the award. . . .The party obtaining judgment confirming . . . the
award shall be the prevailing party except that, without regard to consideration of who
the prevailing party may be, if a party did not appear at the arbitration hearing in the
manner provided by the rules adopted by the board of trustees, that party shall not be
entitled to attorney’s fees or costs upon confirmation.”  (B&P Code §6203(c).)

Lang seeks a total of $20,123.52 in attorneys’ fees and costs which she contends were
incurred in “obtaining confirmation” of the arbitrator award.  This amount consists of
the following legal fees:

Weintraub Tobin –        $6,054.42
Petition Filing Fee – $225
Goodman & Assoc.- $11,115.73
JAMS Arb. Fees –         $2,728.37
Prevailing Party

The Court has concurrently granted Lang’s Petition to Confirm Arbitration. Therefore,
given the plain language of B&P §6203(c), Lang is the prevailing party.  The Court
disagrees with Rogers that he is the prevailing party because he was awarded
$6,107.67 in the arbitration.  Indeed, in the arbitration, Rogers sought $35,643.47 fees,
but the Bar Association reduced that amount by over $29,000.

Fees Incurred

The Court now turns to the fees incurred.  The Court notes that for a significant portion
of these proceedings, Lang has been in pro-per.  Lang hired Goodman & Associates in
July 2013, after the Court denied Lang’s first Petition to confirm arbitration.

Weintraub Tobin

Lang seeks $6,054.42 in legal fees and costs for work done by Weintraub Tobin
(“Weintraub”) during the time she was representing herself in pro-per.  James
Kachmar, from Weibtraub provides a declaration stating that his firm was representing
Lang regarding trust administration issue and agreed to assist Lang in obtaining
confirmation of the fee arbitration agreement.  (Declaration of James Kachmar, ¶2.)
He initially prepared the petition to confirm arbitration which Lang filed in pro per.  (Id. ¶
4.)  He also provided Lang with legal advice regarding the appropriate strategy for
handling Rogers’ untimely demand for arbitration.  (Id.)

Although generally a pro-per litigant may not recover attorneys’ fees for her time spent,
it is clear from the declarations and invoices in the record that Weintraub’s attorneys’
fees were “incurred in obtaining confirmation” of the award.

Lang is entitled to $6054.42 for Weintraub’s attorneys’ fees and costs.

Goodman & Associates

Lang hired Goodman & Associates to represent her in the JAMS hearing on whether
Rogers timely filed his demand for arbitration, the second petition to confirm arbitration
and in the instant matter.  Goodman charges $325/hr for partner work and $275/hr for
associate work.  The Court finds these rates reasonable.  Goodman spent 18.50 hours
and her associate, Stephanie Poston, spent 12.50 hours on Lang’s case, for a total
amount of $9,340.   The Court has reviewed the invoices submitted and finds that the
hours incurred by Goodman were not excessive.  However, the Court finds that the
hours incurred by Stephanie Poston for her work on the Petition and the instant motion
for attorneys’ fees to be excessive.  The Court, therefore, reduces Ms. Poston’s hours
by 3 hours, for a total of 9.5 hours.

Lang is entitled to $8515.00 ($9340 minus $825 [3 hrs x $275/hr]) for Goodman &
Associate’s attorneys’ fees, as well as costs in the amount of $150.73.

Filing Fee and Arbitration Fees

The Court finds that the petition filing fee ($225) and the JAMS arbitration fees
($2,728.37) were incurred in confirming the arbitration award.  Lang is entitled to these             amounts.

The total amount of attorneys’ fees and costs awarded is $17,673.52.

Lang shall prepare a formal order for the Court’s signature pursuant to CRC 3.1312.
To the extent Lang seeks attorneys’ fees and costs for Goodman’s work incurred in
reply to the instant motion and for appearing at the hearing, Goodman shall submit a
declaration accounting for the requested amount.

Item  20    2012-00134724-CL-PA

Cheryl A Lang vs. John D Rogers

Nature of Proceeding:   Petition to Confirm Arbitration Award

Filed By:  Goodman, Karen M.

Petitioner Cheryl A. Lang’s (“Lang”) Petition to Confirm Arbitration Award is
GRANTED.

The following procedural history is pertinent to this motion.  This is an attorney fee
dispute. In August 2012, Lang and Respondent, John Rogers (“Rogers”), appeared for
arbitration before the Sacramento County Bar Association. Rogers claimed that he
was entitled to $35,643.47 in legal fees, which Lang disputed. The panel issued an
award finding that Lang owed Rogers $6,107.67, rather than $35,643.47.   Lang
thereafter filed a petition to confirm the arbitration award.  In opposition to the petition,
Rogers argued that he had timely demanded binding arbitration before JAMS, which
Lang disputed.  As a result, the Court denied the Petition, stating that it was for JAMS
to determine whether arbitration was timely commenced and the effect of the JAMS
rules in that regard. (See 4/2/2013 Order.)  On September 20, 2013, that JAMS
arbitrator Hon. Fred K. Morrison issued a Decision on Jurisdiction to Conduct
Arbitration.  (See Lang Decl. Ex. I.)  The Decision found that Rogers’ demand for
arbitration was untimely, therefore, JAMS did not have jurisdiction to arbitrate the
matter and the Bar Association’s award was binding.  (Id.)  Lang subsequently filed the
instant Petition to Confirm Arbitration Award.

In opposition to the Petition, Rogers appears to argue that the doctrine of res judicata
bars Lang from re-filing the Petition. Res judicata applies to bar litigation of a cause of
action where there is (1) a final judgment on the merits in an earlier suit; (2)
sufficient identicality between the causes of action asserted in the earlier and later
suits; and (3) sufficient identicality between the parties in the two suits. (Citizens for
Open Access etc. Tide Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)
The Court disagrees with Rogers as the Court’s ruling on Lang’s first Petition was not a
ruling on the merits of the Petition.  Nor is the Court convinced that res judicata applies
in the context of a Petition to Confirm Arbitration.

Accordingly, the Petition is GRANTED.

Pursuant to 3.1312, Lang is directed to submit for the Court’s signature a formal order
confirming the award as well as a separate judgment.