RYAN ATKINS VS CITY OF LOS ANGELES

Case Number: EXPERTWITNESSF    Hearing Date: September 30, 2014    Dept: 46

Case Number: BC449616
RYAN ATKINS ET AL VS CITY OF LOS ANGELES ET AL
Filing Date: 11/16/2010
Case Type: Other Employment Complaint (General Jurisdiction)
Status: Verdict 05/05/2014

09/29/2014 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Three Motions

These tentative rulings are posted at 3:40 p.m. on Friday 9-26-2014. The court is still working on the motion to tax costs at this time and will update the tentative ruling when ready.

Motion #1:

TENTATIVE RULING: McNicholas & McNicholas’s Motion for fees and expert is GRANTED pursuant to Government Code §12965(b) because Plaintiffs were the prevailing parties in this action, but for sums for attorneys’ fees reduced in amount from the request in the motion. Expert witness fees are reasonable and are awarded in full. Attorney’s fees are granted in the amount of $282,425.00 and expert witness fees are granted in the sum of $19,190. The court does not award a multiplier of fees and costs.

Government Code § 12965(b) states, in relevant part, as follows:

“In civil actions brought under this section, the court, in its discretion,
may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees…”

“The court in its discretion may award fees and costs to the ‘prevailing party’ in FEHA actions.” Chin, Wiseman, Callahan and Exelrod, CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2013) ¶ 17:646. “Although the statute states that the court ‘may’ award fees, a prevailing plaintiff is entitled to fees ‘absent circumstances that would render the award unjust.’ [Stephens v. Coldwell Banker Comm’l Group, Inc. (1988) 199 C.A.3d 1394, 1406 (disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 C.4th 563); Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 C.A.4th 359, 394].” Id. at ¶ 17:647 (emphasis theirs).

(1) Lodestar – McNicholas & McNicholas, LLP (hereinafter, “M&M”) request for a Lodestar amount of $425,162.50, is calculated as follows: (1) Matthew McNicholas: 237 hrs. at $850/hr.; (2) Alyssa Schabloski: 287.25 hrs. at $500/hr.; (3) Douglas Winter: 39.25 hrs. at $650/hr.; (4) Justin Nussen: 107.5 hrs. at $350/hr. and (5) Dawn McGuire (paralegal): 113 hrs. at $150/hr. The amount of hours spent by the attorneys is reasonable, but the hourly rates listed above are excessive and therefore are reduced to $525/hr. for named partner McNicholas, $325/hr. for the other attorneys and $150/hr. for the paralegal, as recommended by Gerald Knapton in his declaration in opposition. The court finds that the hourly rates quoted by Gerald Knapton are within the range of reasonable.

“[T]rial courts have broad discretion in determining the amount of a reasonable attorney’s fee award.” Meister v. Regents of University of California (1998) 67 C.A.4th 437, 452. “A trial court’s attorney fee award will not be set aside ‘absent a showing that it is manifestly excessive in the circumstances.’ (Children’s Hospital & Medical Center v. Bonta (2002) 97 C.A.4th 740, 782).” Raining Data Corp. v. Barrenechea (2009) 175 C.A.4th 1363, 1375.

“In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the ‘lodestar’ amount…[t]he ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ (PCLM Group, Inc. v. Drexler (2000) 22 C.4th 1084, 1095). To determine the reasonable hourly rate, the court looks to the ‘hourly rate prevailing in the community for similar work.’ (Ibid.) Using the lodestar as the basis for the attorney fee award ‘anchors the trial court’s analysis to an objective determination of the value of an attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.].’ (Ibid.).” Bernardi v. County of Monterey (2008) 167 C.A.4th 1379, 1393-1394.

“Some federal courts require that an attorney maintain and submit ‘contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney’ in support of an application for attorney fees…[i]n California, an attorney need not submit contemporaneous time records in order to recover attorney fees…[t]estimony 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. (Glendora Community Redevelopment Agency v. Demeter (1984) 155 C.A.3d 465, 470-471, 478; Margolin v. Regional Planning Com. (1982) 134 C.A.3d 999, 1006).” Martino v. Denevi (1986) 182 C.A. 3d 553, 559. “[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” Raining Data Corp., supra, 175 C.A.4th at 1375.

(2) Multiplier – The request for a multiplier of 7 is overreaching and inappropriate. The court denies request for enhancement of fees.

“Fee enhancements by means of multipliers or otherwise are well recognized in California. (E.g., Serrano v. Priest (1977) 20 C.3d 25 (Serrano III); Beasley v. Wells Fargo Bank (1991) 235 C.A.3d 1407; City of Oakland v. Oakland Raiders (1988) 203 C.A.3d 78; Kern River Public Access Com. v. City of Bakersfield (1985) 170 C.A.3d 1205). Under California law, the trial court begins by fixing a ‘lodestar’ or ‘touchstone’ reflecting a compilation of the time spent and reasonable hourly compensation of each attorney or legal professional involved in the presentation of the case. The court then adjusts this figure in light of a number of factors that militate in favor of augmentation or diminution. (Serrano III, 20 C.3d at pp. 48-49.).” Weeks v. Baker & McKenzie (1998) 63 C.A.4th 1128, 1171.

“The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action. Government Code section 12965, subdivision (b) thus authorizes an award of reasonable attorney fees, not an award of reasonable fees plus an enhancement. Nonetheless, it is recognized that some form of fee enhancement may be appropriate and necessary to attract competent representation of cases meriting legal assistance. In Press v. Lucky Stores, Inc. (1983) 34 C.3d 311, 322, California’s Supreme Court implicitly found that it would be appropriate to enhance an award by means of a multiplier ‘”to reflect the broad public impact of the results obtained and to compensate for the high quality of work performed and the contingencies involved in undertaking this litigation.”’ This does not mean, however, that the trial courts should enhance the lodestar figure in every case of uncertain outcome or where the work performed was of high quality. The challenge to the trial courts is to make an award that provides fair compensation to the attorneys involved in the litigation at hand and encourages litigation of claims that in the public interest merit litigation, without encouraging the unnecessary litigation of claims of little public value.” Id. at 1171-1172.

“[T]he party seeking a fee enhancement bears the burden of proof.” Ketchum v. Moses (2001) 24 C.4th 1122, 1138. “The classic situation justifying an upward adjustment of the lodestar figure was seen in the Serrano cases (Serrano v. Priest (1971) 5 C.3d 584 (Serrano I), Serrano v. Priest (1976) 18 C.3d 728 (Serrano II) and Serrano III, supra, 20 C.3d 25). The litigation there revolved around California’s system for financing public schools. The plaintiffs succeeded in overturning the existing system, obtaining an order that it be replaced by a system designed to provide an equitable distribution of state funds between all public schools. The litigation resulted in no fund of money from which attorney fees might be paid, nor did it result in any monetary recovery by the plaintiffs. The plaintiffs were under no obligation to pay their attorneys for their efforts. It appears that the attorneys did, however, receive some funding from charities or public sources for the purposes of prosecuting cases of the character involved in that action-a factor the court found to be relevant in determining the size of an award of fees. (Serrano III, supra, 20 C.3d at p. 49, fn. 24). Finally, an award of fees was uncertain not only because of the complexity and difficulty of the legal issues involved, but because there was no clear statutory authority for shifting attorney fees to the defendant. In contrast, the present case is in essence a personal injury action, brought by a single plaintiff to recover her own economic damages. Weeks and her attorneys had a fee agreement by which her attorneys were assured of a portion of any recovery. In addition, because of the availability of attorney fees under the FEHA, the attorneys had reason to assume that the amount of Weeks’s recovery would not limit the amount of fees they ultimately received. Thus, the risk that Weeks’s attorneys would not be compensated for their work was no greater than the risk of loss inherent in any contingency fee case; however, because of the availability of statutory fees the possibility of receiving full compensation for litigating the case was greater than that inherent in most contingency fee actions.” Id. at 1173-1174. This reasoning applies equally here.

“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 C.3d 621, 635; accord, Ketchum[, supra,] 24 C.4th [at] 1137).” Chavez v. City of Los Angeles (2010) 47 C.4th 970, 990.

McNicholas & McNicholas associated into this case in 11/13. (Declaration of Matthew McNicholas, ¶3). Judgment was entered in this case on 5/21/14; as such, McNicholas & McNicholas contingent fee risk lasted a mere six months. This fact strongly militates against the award of a multiplier.

Motion #2:

TENTATIVE RULING: Fullerton & Hanna LLP’s [“F&H”] Motion for fees and expert costs is GRANTED pursuant to Government Code §12965(b) because Plaintiffs were the prevailing parties in this action, but for attorney fees sums reduced in amount from the request in the motion. Expert witness fees are reasonable and are awarded in full. Attorney’s fees are granted in the amount of $936,360.00 and expert witness fees are granted in the sum of $32,130. Lodestar amount of fees awarded is $468,180.00. The court awards a multiplier of 1, thus increasing the fees awarded by double.

The same points and authorities apply here as with the McNicholas and McNicholas motion.

F&H request for fees is in the Lodestar amount of $653,120, calculated as follows: (1) Lawrence J. Hanna (hereinafter, “Hanna”): 285 hrs. at $650/hr. and (2) Daphne Stegman: 719.8 hrs. at $650/hr. Hanna concedes that F&H was paid $59,392.50 for 395.5 hours of the 831.35 hours incurred during the 10/1/09-9/30/13 time period. Consistent with the ruling above, the court will reduce the hourly rates consistent with the declaration Gerald Knapton. The court finds that the hourly rates quoted by Gerald Knapton are within the range of reasonable. The hourly rates, then, are reduced to $375/hr. for 395.95 of these hours (i.e., totaling $148,481.25); the balance of the hours (i.e., 608.95) are reduced to $525/hr. (i.e., totaling $319,698.75), for a total Lodestar of $468,180.00.

With respect to the multiplier issue, Defendant City of Los Angeles points out that F&H’s “contingent fee risk began after September 30, 2013, when they were no longer being paid for their services by LAPPL.” (Opposition, 9:27-28). While this risk lasted only 7 months, this firmhas been litigating this case since 2009. Therefore, the court concludes that F & H should receive a multiplier of 1.0 for a total fee award of $936,360.00.

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