Case Number: BC521900 Hearing Date: March 22, 2018 Dept: 46

Case Number: BC521900
NOE ABARCA VS CITIZENS OF HUMANITY LLC

Filing Date: 09/20/2013
Case Type: Other Employment Complaint (General Jurisdiction)
Status: Verdict 03/09/2017

NOTE: THERE ARE TWO SEPARATE TENTATIVE RULINGS, THE TAX COSTS FOLLOWS IN A SEPARATE TENTATIVE

03/22/2018
Motion for Award of Attorney’s Fees

TENTATIVE RULING — MOTION #2: Attorney’s Fees

Defendant’s Evidentiary Objections are OVERRULED. See Reid v. Google, Inc. (2010) 50 C.4th 512, 532 (“all too often litigants file blunderbuss objections to virtually every item of evidence submitted…they may face informal reprimands or formal sanctions”) (internal quotations omitted).

Plaintiff is awarded attorney’s fees in the sum of $1,084,160 pursuant to CCP §§1032 & 1033.5 and Gov’t Code §12965(b). See discussion.

DISCUSSION

“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.” (1 Witkin, Cal. Procedure (3d ed. 1985) § 165, p. 192; Hensley v. Eckerhart (1983) 461 U.S. 424, 433, 437 [76 L.Ed.2d 40, 50, 53, 103 S.Ct. 1933]; see Los Angeles v. Los Angeles-Inyo Farms Co. (1933) 134 Cal.App. 268, 274 [25 P.2d 224].) “In many cases 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.” (In re Marriage of Cueva, supra., 86 Cal.App.3d at p. 301, fn. omitted.) However, in the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client’s behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney’s services. That practice is unacceptable and cannot be the basis for an award of fees.” Martino v. Denevi (1986) 182 C.A.3d 553, 558-559.

“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.’ (Citation.) To determine the reasonable hourly rate, the court looks to the ‘hourly rate prevailing in the community for similar work.’ (Citation.) 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.)’” 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.” Martino v. Denevi (1986) 182 Cal.App.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., 175 Cal.App.4th at 1375. “‘“[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.’” Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 C.A.4th 550, 556.

“[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. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The “ ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” (Ibid.)” Ketchum v. Moses (2001) 24 C.4th 1122, 1132.

“[T]he contingent and deferred nature of the fee award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1132–1133, 104 Cal.Rptr.2d 377, 17 P.3d 735.) “ ‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’ ” (Id. at p. 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735, quoting with approval from Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480.) The contingency adjustment may be made at the lodestar phase of the court’s calculation or by applying a multiplier to the noncontingency lodestar calculation (but not both). (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1133–1134, 104 Cal.Rptr.2d 377, 17 P.3d 735.)” Horsford v. Board of Trustees of California State University (2005) 132 C.A.4th 359, 394-395.

Plaintiff provides detailed billing records showing the following hours expended and hourly rates: 2,627.9 hours divided between Zhenia Burgis [$700/hour for 687.5 hours]; Michael Burgis [$700/hour for 547.2 hours]; Daniel Kramer [$700/hour for 912.6 hours]; Teresa Johnson [$350/hour for 288.5 hours]; Stuart Esner [$700/hour for 19.5 hours]; Jenny Valencia [$200/hour for 120.1 hours]; and Jennifer Twitty [$200/hour for 52.5 hours]. (Plaintiff’s Appendix of Evidence, Exhibits 1-6).

Lodestar Calculation

Total Hours Properly Billed

Defendant’s objections can be summarized as: (1) Plaintiff abandoned his largest theory of damages; (2) the amount of time billed was excessive because this case is “little more complex than a traffic accident.” (Opposition p. 5:25).

Defendant’s first argument is not relevant. The second one represents a mere difference of opinion, and is unsupported by evidence.

Defendant’s counsel may be more efficient than Plaintiff’s counsel, but that is not the issue. The number of hours in this case appears to be more a function of the heat of the contest rather than its factual complexity, and for that, Defendant bears its share of the blame.

Defendant objects to the use of multiple attorneys. But the benefits of having separate sets of eyes going over the same documents are manifest, and the value of internal consultation can be quite high. The court declines to second-guess the decisions of Plaintiff’s counsel; they did, after all, prevail. Defendant also argues that the time records are not contemporaneous. But as noted above, there is no requirement that the records be contemporaneous.

This case was litigated to the hilt. Defendant litigated every possible issue, in this court’s opinion, at times, excessively. If the number of hours here is exceptional, that is the reason why. An exceptional number of hours is required to overcome an exceptionally tenacious defense.

For the foregoing reasons, the total hours billed by Plaintiff’s counsel is reasonable and are not reduced.

Hourly Rate

The rates claimed the above attorneys and support staff are, however, excessive. The rates for Zhenia Burgis, Michael Burgis, and Daniel Kramer should be reduced to $450/hour, the rate for Stuart Esner to $500/hour, the rate for Teresa Johnson to $300/hour and the rate for the two paralegals to $125/hour. These rates take into account the contingent nature of the fee award, as required by Ketchum, supra, 24 C.4th at 1132-34.

The lodestar figure calculated using the above-determined hours and hourly rate is $1,084,160.00.

Multiplier

Plaintiff seeks a 2.0 multiplier. As noted above, four factors are used to analyze whether a multiplier is appropriate or not: (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. Id. at 1132.

Plaintiff’s argument to the first factor (novelty and difficulty of the issues) is a perfunctory reference to the declarations of his counsel and the conclusory assertion that the case was hard. The case was certainly difficult, but this difficulty was owing more to the determination of the defense than any particular novelty in the issues. This factor does not weigh in favor of a multiplier.

Plaintiff’s argument on the second factor (skill displayed) is essentially that he won. Given that losers cannot recover attorney’s fees, accepting Plaintiff’s argument would essentially render the analysis of this second factor unnecessary or moot. This facts in support of this factor do not weigh in favor of a multiplier.

Plaintiff’s argument on the third factor is likewise unpersuasive: he contends that her lawyers had to spend time on this case rather than other cases. The question is therefore whether Plaintiff’s counsel was forced to spend so much time on this particular case that other cases went neglected or untaken, not that Plaintiff had to work on this case to the exclusion of others. Plaintiff has shown no evidence of such extreme preoccupation.

Finally, the contingent risk has already been accounted for in the calculation of the hourly rate used for the lodestar figure, as permitted under Ketchum, supra, 24 C.4th at 1132-34.

Conclusion

For these reasons, no multiplier is granted. Plaintiff is awarded attorney’s fees in the sum of $1,084,160 pursuant to CCP §§1032 & 1033.5 and Gov’t Code §12965(b). See discussion.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge