Case Number: BC711476 Hearing Date: February 18, 2020 Dept: 47

Elvia A. Espinoza v. LAX In-Flite Services, LLC, et al.

MOTION FOR ATTORNEY’S FEES

MOVING PARTY: Plaintiff Elvia A. Espinoza

RESPONDING PARTY(S): Defendants LAX In-Flite Services, LLC and Royal Airline Linen, Inc. (separate oppositions)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleged wage and hour violations, as well as unfair competition and conversion. The parties settled for $19,000.

Plaintiff moves for attorney’s fees as the prevailing party.

TENTATIVE RULING:

Plaintiff Elvia A. Espinoza’s motion for attorney’s fees is GRANTED in the amount of $30,000 in attorney’s fees, which the Court finds to be the reasonable total amount of attorney’s fees incurred in connection with this action, and $2,906.98 in costs. Fees are to be apportioned between the Defendants as follows: LAX In-Flite Services LLC is to pay $27,500, and Royal Airline Linen, Inc. is to pay $2,500. LAX In-Flite Services LLC is to pay the entire costs award.

DISCUSSION:

Motion For Attorney’s Fees

Unsigned Notice of Motion

Plaintiff’s Notice of Motion is unsigned.

Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(CCP § 128.7(a) (bold emphasis added).) To avoid having the notice stricken, Plaintiff will need to correct this omission at or before the hearing.

Joinder and Late-Filed Opposition by Defendant Royal Airline Linen, Inc.

A notice of joinder must be served pursuant to the same notice requirements as the motion in which the joinder is made. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 718-719.)

Here, Defendant Royal Airline Linen, Inc.’s opposition with notice of joinder was served by overnight mail on February 5, 2020. This does not comply with the notice requirement set forth in CCP § 1005(b) for service of an opposition, which should have been filed and served February 3, 2020, nine court days before the hearing.

Moreover, as to the motion itself, Defendant Royal Airline Linen, Inc. is not similarly situated to Defendant LAX In-Flite Services, as its limited opposition makes clear. Therefore, it should have filed its own timely opposition.

Accordingly, Defendant Royal Airline Linen, Inc.’s notice of joinder is DENIED.

In its discretion, however, the Court will consider Defendant Royal Airline Linen, Inc.’s late-filed opposition. (CRC 3.1300(d).)

Analysis

Plaintiff moves for an award of attorney’s fees in the amount of $112,181.25, plus an additional $3,000 in connection with her two replies and $2,906.98 in costs.

Labor Code § 218.5 provides that reasonable attorney’s fees and costs must be awarded to the prevailing party in an “action brought for the nonpayment of wages.” Labor Code § 226 provides for attorney’s fees and costs in cases of intentional failure to provide itemized wage statements (subsection (e) and in cases seeking injunctive relief to ensure compliance with the requirement to provide itemized wage statements (subsection (g)). Labor Code § 1194 also provides for a mandatory award of reasonable attorney’s fees and costs in a civil action in which the employee recovers unpaid minimum wages or overtime compensation. CCP § 1032(a)(4) also provides for costs, including reasonable attorney’s fees, to a party that receives a “net monetary recovery” and is therefore the “prevailing party.”

Plaintiff did not submit the parties’ settlement agreement in connection with this motion. However, neither Defendant disputes that they settled with Plaintiff for “$19,000.00, plus costs and attorney’s fees by motion or a subsequent agreement.” (Declaration of Liliuokalani H. Martin ¶ 7.)

Given that Plaintiff recovered $19,000, Plaintiff was the prevailing party in this action, as she obtained a “net monetary recovery.” (CCP § 1032(a)(4).) However, Plaintiff also recovered less than the minimum jurisdictional limit for this Court of unlimited civil jurisdiction. Under those circumstances, courts have discretion to award costs, including attorney’s fees, or not:

Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil case.

(CCP § 1033(a) (bold emphasis added).)

The purpose of CCP § 1033 is “to discourage plaintiffs from ‘over filing’ their cases” and thereby “wast[ing] judicial resources.” (Carter v. Cohen (2010) 188 Cal.App.4th 1038, 1053.) Nevertheless, “the trial court may properly award costs to a plaintiff who recovers less than the jurisdictional amount for an unlimited civil case when he or she reasonably and in good faith initiated the action believing that the ultimate recovery would exceed the jurisdictional limit,” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 777.), and it may be necessary to do so when a mandatory fee provision applies. In Almanor, the court held that the trial court did not abuse its discretion in awarding fees under a mandatory fee provision, even though the plaintiff’s recovery was under the jurisdictional minimum for an unlimited civil action. (Id. at 779.) The court distinguished a case involving discretionary attorney’s fees under FEHA, Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, characterizing it as of “limited applicability” when case involves a “mandatory” fee-shifting provision. (Id. at 778.) The court reasoned that the “circumstances in which a court might deny or reduce a fee award under a permissive statutory provision, like FEHA, such as because special circumstances ‘would render an award unjust,’ do not apply equally where a statute mandates attorney’s fees to the prevailing party.” (Id. at 778-79.) The applicability of CCP § 1033 is “uncertain” under those circumstances, and counsel in Almanor “fail[ed] to suggest specific authority for its application.” (Id. at 779.)

As in Almanor, Defendant LAX In-Flight Services has not suggested any specific authority for applying CCP § 1033 in a case involving a mandatory fee provision. Defendant relies on Chavez for that proposition, but that case was persuasively distinguished in Almanor because it did not involve a mandatory fee provision.

Accordingly, the Court will apply Labor Code § 1194(a) and award “reasonable attorney’s fees” to Plaintiff under that provision. This is consistent with the “obvious legislative purpose of giving special treatment to claims for unpaid overtime compensation” reflected in that provision. (Early v. Superior Court (2000) 79 Cal.App.4th 1420, 1427.) In Earley, the court concluded that section 1194 applied rather than the “more general” provisions of Labor Code § 218.5, agreeing with the petitioners that applying section 218.5 would “frustrate the legislative purpose behind the very specific and focused provisions of section 1194.” (Early, supra, 79 Cal.App.4th at 1426. The court concluded that “section 1194, as the one-way fee-shifting statute made specifically applicable by the Legislature to overtime compensation claims, should be recognized as the sole statutory authority for the award of attorney’s fees upon the successful prosecution of such claims.” (Id. at 1429 (bold emphasis added).)

At the same time, recognizing that Plaintiff is entitled to attorney’s fees incurred in recovering the unpaid balance of her unpaid wages does not mean that the Court must award Plaintiff all, or even most, of her requested fees. The determination of a reasonable amount of attorney’s fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Here, Plaintiff represents that the lodestar amount is $74,787.50 plus an additional $3,000 in connection with the two reply briefs in support of this motion. Although the Court raises an eyebrow at the speed with which counsel Ramin Younessi’s hourly rate has increased from $600 to $900 and also questions counsel’s math when he declares that his current rate of $900 per hour is “in the middle” of a range from $425 to $1000 (Declaration of Ramin R. Younessi ¶ 12), the Court finds counsel’s hourly rates ranging from $350 to $900 and the blended paralegal/legal assistant/law clerk rate of $200/hour to be unreasonable as to the $900/hr. rate, as well as to the $200/hr. rate for the blended paralegal/legal assistant/law clerk. A reasonable rate range for these lawyers in this particular case is between $250 and $600 per hour, and $125/hr. for the latter.

Additionally, the Court finds the amount of hours worked, however – and the number of attorneys staffed – to be unreasonable. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38, as modified (Oct. 11, 2019), review denied (Jan. 2, 2020).) Seven attorneys plus law clerks staffing a case in this relatively simple wage and hour case is unreasonable. The Court has also considered the Defendants’ oppositions and found Defendant LAX In-Flite’s opposition quite persuasive, while noting that the Court has not made findings regarding which of Plaintiff’s claims were valid, and it is inappropriate to do so in the context of a motion for attorney’s fees following a settlement. If Defendant intended to argue that certain claims were invalid and could not provide the basis for fees, Defendant should have negotiated that as part of the settlement and presented the Court with a settlement agreement reflecting those negotiations. Nevertheless, Plaintiff herself asserts that the settlement was “to compensate her for unpaid minimum and overtime wages, penalties, and interest.” (Motion, at p. 1.) Plaintiff does not assert that the settlement reflects any compensation for her other causes of action.

In addition, the number of hours claimed here is unreasonable for a case in which there were “no discovery motions, no dispositive motions, only one day of depositions . . . per side . . . , no expert witnesses . . . , no motions in limine . . . , and only minimal trial preparation.” (Declaration of Brian D. Peters ¶ 12.) Plaintiff also had only limited success in this case, as discussed above. Plaintiff’s complaint had seven causes of action, in connection with which she sought damages “estimated to be no less than $100,000.” (Complaint, Prayer for Relief.) The amount Plaintiff recovered is less than the amount she sought for underpaid minimum wages, less than the amount sought for liquidated damages, significantly less than the amount sought for unpaid overtime, and only slightly more than the amount she had sought for waiting time penalties and damages under Labor Code § 226 combined. In that context, the amount of hours claimed is unreasonable. The Court also finds that a lodestar multiplier is not appropriate in this case.

Utilizing the lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees incurred in this case for the work performed in connection with this action is $30,000.

Costs

Neither Defendant raises any objection to the costs claimed by Plaintiff. Accordingly, Plaintiff’s request for costs is GRANTED in the amount of $2,906.98.

Apportionment

Defendant Royal Airline Linen, Inc. requests that the Court apportion fees between the Defendants.

In general, attorney’s fees awarded based on a statute are ordinarily a joint and several liability of the losing parties. (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 837-838.) Therefore, it is not an abuse of discretion to fail to apportion fees when no party has requested apportionment. (Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1672 n. 7.) When a party does request apportionment, however, the Court has discretion to apportion fees among the losing parties. (Ibid.)

Here, given Defendant Royal Airline Linen, Inc.’s late and limited involvement in this case, the Court finds it appropriate to apportion the fee award between the Defendants such that Defendant LAX In-Flite Services, LLC is responsible for $27,500 and Defendant Royal Airline Linen, Inc. is responsible for $2,500. All costs are to be paid by Defendant LAX In-Flite Services, LLC.

Conclusion

Accordingly, the motion for attorney’s fees and costs is GRANTED in the amount of $30,000 in attorney’s fees and $2,906.98 in costs. Fees are to be apportioned between the Defendants as follows: LAX In-Flite Services LLC is to pay $27,500, and Royal Airline Linen, Inc. is to pay $2,500. LAX In-Flite Services LLC is to pay the entire costs award.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 18, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court