Case Number: BC654731 Hearing Date: June 05, 2018 Dept: 34

SUBJECT: Motion for attorney’s fees

Moving Party: Plaintiff Gilbert Laurie

Resp. Party: None

The motion is GRANTED. Plaintiff is awarded attorney fees in the amount of $25,290.00 and costs in the amount of $2,254.39.

BACKGROUND:

Plaintiff commenced this action on 03/20/17 against defendants for: (1) failure to pay wages; (2) failure to pay minimum wages; (3) failure to pay overtime; (4) failure to provide meal and rest breaks; (5) failure to furnish wage and hour statements; (6) failure to maintain employee records; (7) failure to pay all wages earned for labor no later than payday for next regular payroll period; (8) waiting time penalties; (9) retaliation; (10) violations of Business & Professions Code section 17200; and (11) conversion.

On 03/14/18, plaintiff voluntarily dismissed his 4th, 6th, 7th, 9th, 10th, and 11th causes of action. (See Judgment of 04/12/18, p. 2:6-7.)

Trial commenced on 03/19/18. The Court dismissed Plaintiff’s second cause of action for failure to pay minimum wages and third cause of action for failure to pay overtime. During trial, the Court entered a directed verdict for plaintiff on his fifth cause of action for failure to furnish wage and hours statements and his eight cause of action for waiting time penalties. (See 4/12/2018 judgment.)

Plaintiff was awarded $6,304.00 in damages as well as costs and attorney fees to be determined pursuant to a noticed motion. (See Id. at p. 2:26-3:5.)

ANALYSIS:

Plaintiff moves for an award of attorney fees in the total amount of $63,225.00 and costs in the amount of $3,075.27. (See Motion, p. 10:18-20; Memorandum of Costs, p. 1.)

Relevant Law

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.)

Attorney’s fees may be recovered pursuant to Labor Code sections 218.5 (claims for nonpayment of wages), 226 (failure to provide accurate and itemized wage statements), 1194 (failure to pay overtime compensation), 1198.5 (failure to make personnel records available for inspection), and 2802 (failure to reimburse expenses). (See Lab. Code, §§ 218.5(a), 226(e), 1194(a), 1198.5(l), 2802(b).)

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) In determining the reasonable value of the attorney services, “the court does not need separate evidence to establish the reasonable value of whatever should be justly awarded, the theory being that the trial judge is competent from his own knowledge of legal practice to fix the amount of the fees. [Citations.]” (Spencer v. Harmon Enterprises (1965) 234 Cal.App.2d 614, 621 [internal citations omitted].)

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino, 182 Cal.App.3d at 559.)

In determining whether the requested attorney’s fees are “reasonable,” the Court’s

“first step involves the lodestar figure – a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].)

In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

Discussion

On 04/12/18, the Court entered judgment in favor of plaintiff on his 1st, 5th, and 8th causes of action for violations of the Labor Code, including failure to pay wages and failure to provide accurate and itemized wage statements. (See Judgment of 04/12/18.) Accordingly, plaintiff may recover his reasonable attorney fees and costs pursuant to statute.

Attorney Fees

Plaintiff seeks to recover a total of $63,225.00 in attorney fees. (Simonian Decl., ¶ 7.) Plaintiff’s counsel declares that he has spent a total of 140.5 hours working on this case and has submitted detailed time records to support this claim. (See Ibid., Exh. 1.) Counsel declares that he regularly bills $450.00 per hour based on 11.5 years of litigation experience and notes that this fee is significantly lower than approximately $717 per hour that might be appropriate for attorneys with at least 11 years of experience according to the Laffey matrix. (See Id. at ¶ 7, Exh. 3; See Motion, p. 9:5-13.)

The Court finds that plaintiff counsel’s “[t]estimony . . . as to the number of hours worked on a particular case is sufficient evidence” to support the award of the requested attorney fees and that $450.00 per hour is a reasonable hourly rate. (See Martino, supra, at p. 559; Mardirossian v. Ersoff (2007) 153 Cal.App.4th 257, 269.)

Defendants have, somewhat surprisingly, not submitted an opposition to plaintiff’s request.

Nonetheless, the Court feels compelled to apply a negative multiplier in this case. As the Court stated, both before and after the jury verdict, this was a case that should have been filed in small claims court. While every California resident has a right to a jury trial, not every case should be tried to a jury. There was no reason that this case – involving a recovery of $6,304 – should have taken 3 days of a jury’s time. The 12 jurors in this case lost more than $6,000 in foregone wages for serving on the jury during the trial. Plaintiff took just 3.4 hours for its presentation of evidence (and cross-examination); defendant took 2.1 hours. The jury did not find this a difficult case; it deliberated for less than 50 minutes.

This case should have been filed in small claims court; if not it should have been filed as a limited case; if not, it should have been tried to the court; if not, it plaintiff should have opted for an expedited jury trial.

“The exercise of sound discretion by the trial court in the matter of attorney’s fees includes also judicial evaluation of whether counsel’s skill and effort were wisely devoted to the expeditious disposition of the case.” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870, quoting In re Marriage of Huntington (1992) 10 Cal. App. 4th 1513, 1524.)

In the parallel context of a FEHA action, our Supreme Court has been clear that the trial court has discretion to completely deny a prevailing plaintiff’s request for attorney’s fees when the plaintiff achieved only $11,500 – “which is less than half of the $25,000 jurisdictional limit for a limited civil case.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 976.) Here, of course, plaintiff’s award was only 60% of the maximum award that could have been granted in a small claims action.

Considering these factors, the Court will apply a negative lodestar in this case of 60%, and award attorney’s fees in the amount of $25,290.00.

Costs

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032(b).)

In his motion, plaintiff requests that he be reimbursed for his costs in the amount of $3,075.27. (See Motion, p. 10:18-20.) However, plaintiff’s verified memorandum of costs indicates that plaintiff incurred only $2,254.39 in costs. (See Memo of Costs, filed 04/18/18.) Despite this discrepancy, the $2,254.39 in costs is supported by the accompanying documentation and the costs appear to be reasonable.

Accordingly, plaintiff is awarded costs in the amount of $2,254.39.