Case Number: KC065654    Hearing Date: July 22, 2014    Dept: J

Re: Jack Ruiz v. Target Corporation, et al. (KC065654)

MOTION FOR ATTORNEYS’ FEES PURSUANT TO CCP §§ 1032 AND 1033.5

Moving Parties: Defendants Target Corporation, Sedgwick CMS and Nancy Kraut

Respondent: No timely opposition filed

POS: Moving OK

Plaintiff alleged that he was discriminated against by his employer on the basis of his disability. Plaintiff commenced this action on 2/15/13. The operative Second Amended Complaint, filed on 8/2/13, asserts causes of action for:

1. Fraud by False Promise
2. Violation of Gov C § 12940(a)
3. Violation of Gov C § 12940(j)
4. Violation of Gov C § 12940(i)

On 2/27/14, the court granted Defendants’ Motion for Summary Judgment, and thereafter entered judgment in favor of Defendants, and against Plaintiff.

Defendants Target Corporation, Sedgwick CMS and Nancy Kraut (collectively “Defendants”) now move for an order setting and awarding Defendants attorneys’ fees and costs in the amount of $172,674.50 against Plaintiff Jack Ruiz (“Plaintiff”). Defendants’ attorneys’ fees in this action are recoverable pursuant to CCP §§ 1032 and 1033.5(a)(1), and Gov C § 12965. The motion is made on the grounds that Defendants are entitled to recover their attorneys’ fees as the prevailing party in this action because: (1) this court granted summary judgment in favor of Defendants on February 27, 2014, and entered judgment in Defendants’ favor on March 20, 2014; and (2) Defendants are the prevailing party on Plaintiff’s frivolous, unreasonable and meritless claims, including Plaintiff’s claims under the Fair Employment and Housing Act.

ENTITLEMENT TO FEES:

Attorneys’ fees are allowable as costs to a prevailing party when authorized by statute. (CCP §§ 1021, 1032, 1033.5(a)(10)(B).)

A prevailing defendant is entitled to fees under the FEHA only if plaintiff’s discrimination claim is “frivolous, unreasonable or groundless.” (Jersey v. John Muir Med. Ctr. (2002) 97 Cal.App.4th 814, 831 – The mere fact that summary judgment is granted in favor of the employer in an FEHA action for sex discrimination does not entitle the employer to an award of attorney fees.) Whether plaintiff’s claim was so groundless as to warrant a fee award must be evaluated with respect to the entire complaint, not just the FEHA cause of action. (Id. at 832.)

It is an abuse of discretion to award fees to a defendant in a FEHA action solely because plaintiff loses the action. “This kind of hindsight logic could discourage all but the most airtight claims…” (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 865 (internal quotes omitted).) Rather, it must appear that plaintiff’s conduct was “egregious,” or that his or her case was “patently baseless for objective reasons.” (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389–1390.)

Thus, “where the plaintiff presents a colorable claim, and particularly where the adverse jury verdict is less than unanimous, such an award is inappropriate in light of the very strong public antidiscrimination policy embodied in FEHA. Any other standard would have the disastrous effect of closing the courtroom door to plaintiffs who have meritorious claims but who dare not risk the financial ruin caused by an award of attorney fees if they ultimately do not succeed.” (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, supra, 91 Cal.App.4th at 873–874.)

The plaintiff’s ability to pay must be considered before awarding attorney fees in favor of the defendant in a FEHA action. (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1203 — $40,000 fee award to City upheld where City Employee earning $25 per hour failed to offer any evidence of ability to pay.)

To ensure that the public policy served by FEHA actions is not thwarted, written findings are required showing why plaintiff’s discrimination claim was “frivolous, unreasonable or groundless.” Failure to make such findings is reversible error. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, supra, 91 Cal.App.4th at 868.)

On February 27, 2014, the court granted Defendants’ motion for summary judgment and entered judgment in favor of Defendants and against Plaintiff. (Motion, Massoumi Decl. ¶ 5, Exh. A.) Defendants contend that Plaintiff’s discrimination claim was frivolous, unreasonable and/or groundless for the following reasons:

First, Plaintiff’s FEHA claim was premised on a claim of adverse employment action wherein Target allegedly wrongfully terminated his employment because of his alleged disability. However, Plaintiff admitted at his deposition that he voluntarily resigned from his position with Target in order to pursue what he considered better opportunities with Living Spaces. (Motion, Massoumi Decl. ¶ 6, Exh. B.)

Second, Plaintiff resolved all issues related to his 2009 workers’ compensation injury by way of a Compromise and Release Agreement. The Agreement specifically released “all workers’ compensation-related claims,” Plaintiff’s “workers’ compensation injury under the workers’ compensation regulations,” and “discrimination (Labor Code section 132a).” (Id. at Exh. C.)

Plaintiff did not oppose this motion and thus impliedly concedes the merits of the motion. Thus, the court finds that Plaintiff’s claims were frivolous, unreasonable or groundless and that Defendants are entitled to attorneys’ fees and costs under the FEHA.

REASONABLENESS OF THE FEES:

To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present: (1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by the applicant and other lawyers, as to what would be a reasonable fee for such services. (Martino v. Denevi (1986) 182 Cal. App. 3d 553, 558-59.) In many cases, however, the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file. (Id. at 559.) In California, 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. (Ibid.) If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred by the prevailing party, then the burden shifts to the opposing party to show that the items are unreasonable. (Decoto Sch. Dist. of Alameda County v. M & S Tile Co. (1964) 225 Cal. App. 2d 310, 316-17.)

Counsel for Defendants represents that the total attorneys’ fees incurred by Defendants in defending themselves in this action through March 20, 2014 are $260,688.00 (Motion, Massoumi Decl. ¶ 8); in the interest of efficiency, Defendants are limiting their request for attorney fees to only those fees incurred in connection with discovery matters, preparation of the motion for summary judgment, preparation of motions in limine, preparation for and attendance at hearings, and preparation for and attendance at mediation (Ibid.); the total attorney fees associated with these limited matters is $172,674.50, as reflected in the billing statement (Id., Exh. D); the vast majority of work on behalf of Defendants was conducted by Mandana Massoumi, Jessica Linchan and Judy Sha, whose hourly billing rates are $475.00, $480.00, and $335.00, respectively (Id. ¶ 9); also assisting in this matter were Cherise latortue, Darrin Thurber, and Jan Lawrence (Ibid.); the billing rates for Mr. Thurber, a paralegal, is $115.00 per hour (Ibid.); based on counsel’s experience, counsel believes the hourly rates are below the market rate (Ibid.); counsel is an employment litigation partner at Manatt, Phelps & Phillips, LLP, who has been in practice for seventeen years (Id. ¶ 10); Jessica Linehan is an attorney with more than thirteen years of experience (Ibid.); and Judy Sha is a fifth year litigation associate with several years of experience working on matters similar to this case (Ibid.).

The hourly rates and the charges appear to be reasonable. However, Defendants have presented no evidence regarding Plaintiff’s ability to pay an award of attorneys’ fees in the magnitude they request. The court will hear from counsel for the moving parties on this issue.