Gonzalez v. Buffalo Inn

 

 

 

 

 

 

 

 

Filed 7/1/13 
Gonzalez v. Buffalo Inn CA4/2

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

STEPHANIE GONZALEZ,               Plaintiff and Respondent,   v.   BUFFALO INN, INC. et al.,               Defendants and Appellants.

E052396               (Super.Ct.No. RCVRS081741)               OPINION

 

            APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County. 
Martin A. Hildreth, Judge. 
(Retired judge of the San Bernardino Muni. Ct., West Valley Division, sitting under assignment by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) 
Affirmed with directions.

            Law Offices of Kersten &
Associates, William C. Kersten and Brandon R. Creel for Defendants and
Appellants.

            Law Offices of Lisa L. Maki, Lisa L.
Maki and Betty J. Boyd for Plaintiff and Respondent.

I

INTRODUCTION

            Plaintiff Stephanie Gonzalez was
employed by the Buffalo Inn restaurant. 
Defendants Richard Rinard, Janna Hickler, and Buffalo Inn Route 66
Corporation (collectively Buffalo) appeal from a postjudgment order, awarding plaintiff
attorney’s fees in the amount of $254,615.50.href="#_ftn1" name="_ftnref1" title="">^[1]

            Defendants appeal, arguing the
attorney’s fee award was an abuse of discretion.  We conclude there was no abuse of discretion
and affirm.

II

FACTUAL AND PROCEDURAL BACKGROUND

We discussed the factual background of this case in a
previous appeal, (Gonzalez v. Rinard (Jan. 31, 2008, E041658) [nonpub. opn.]) (the default appeal).  As described in that opinion, plaintiff was
the single mother of a mixed-race child. 
Plaintiff began dating Forrest K. Rinardhref="#_ftn2" name="_ftnref2" title="">^[2] in July
1995.  Plaintiff lived with Forrest and
worked at the Buffalo Inn for two years between July 1999 and July 2001.  Forrest was the owner and plaintiff was the
manager.  Forrest drank alcohol at work
and was abusive toward plaintiff in their personal life and as his
employee.  He made racist comments and was
violent toward her child.  He called her
a “Nigger lover” and told her she was fired. 
He continued to employ her until he beat her in the face with a mop.  Plaintiff moved out of their house but still
managed the Buffalo Inn.  In July 2001,
plaintiff dated another man and Forrest fired her again.  Forrest threatened and harassed
plaintiff.  Forrest called plaintiff a
thief, an embezzler, an extortionist, a liar, crazy, and incompetent.  He failed to pay her wages and left a number
of angry, threatening, and profane messages on her telephone.  In 2003, Forrest transferred ownership of the
Buffalo Inn to his brother, defendant Richard Rinard, who agreed to accept the
liabilities of the business.

In July 2004, plaintiff sued defendants for alleged
sexual harassment and discrimination, wrongful termination, and related causes
of action.

In August 2006, the court entered a default judgment
in the amount of $1.3 million against defendants.  Between October 2006 and early 2008,
defendants successfully pursued the default appeal, obtaining a reversal of the
default judgment.

On February 11, 2009, plaintiff served defendants with an offer to
compromise (Code Civ. Proc., § 998) in the sum of $95,000.

            A jury trial began on March 2, 2009.  On March 3,
defendants accepted plaintiff’s offer to compromise for $95,000, plus
attorney’s fees and costs.

            Plaintiff submitted a proposed
judgment, including fees of $262,268.50, costs of $38,974.27, and interest of
$598.  The court rejected the proposed
judgment because “attorney’s fees and costs were not determined.  Interest was not included.”

            The court entered a judgment for
$95,000 on May 21, 2009.

            Plaintiff then filed a motion,
pursuant to Government Code section 12965 and Labor Code section 218.5, seeking
attorney’s fees of $509,231.  The court
rejected plaintiff’s argument that she was entitled to a multiplier of 2.0 on
the amount of fees.  The court ordered
actual fees of $254,615.50.

III

ANALYSIS

            We review a trial court’s
determination of reasonable attorney fees under the abuse of discretion
standard:  “[T]here is no question our
review must be highly deferential to the views of the trial court.  [Citation.] 
As our high court has repeatedly stated, ‘“‘[t]he “experienced trial
judge is the best judge of the value of professional services rendered in his
[or her] 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”—meaning that it abused its discretion.’”’  [Citations.]” 
(Children’s Hospital & Medical
Center v. Bontá (2002) 97 Cal.App.4th 740, 777; Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19,
25-26 (Lealao).)

            The trial court’s award of fees must
be reasonable:  “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.  (Ketchum [v. Moses (2001)
24 Cal.4th 1122,] 1131; Meister v.
Regents of University of California (1998) 67 Cal.App.4th 437, 448-449 [78
Cal.Rptr.2d 913] (Meister).)  The ‘lodestar’ is ‘the number of hours
reasonably expended multiplied by the reasonable hourly rate.’  (PLCM
Group, Inc. v. Drexler (2000) 22 Cal.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 Cal.App.4th 1379, 1393-1394 (Bernardi).)

            The lodestar may also be
adjusted:  “‘Once the court has fixed the
lodestar, it may increase or decrease that amount by applying a positive or
negative “multiplier” to take into account a variety of other factors,
including the quality of the representation, the novelty and complexity of the
issues, the results obtained, and the contingent risk presented.’”  (Lealao,
supra, 82 Cal.App.4th at p. 26.) 
‘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.’  (Ketchum v. Moses [, supra,
24 Cal.4th at p.] 1132.)”  (>Thayer v. Wells Fargo Bank (2001) 92
Cal.App.4th 819, 833.)

            Defendants contend the amount of
fees awarded was unreasonable and an abuse of discretion for several
reasons.  Defendants argue plaintiff was
not entitled to any fees incurred in connection with the default judgment,
including fees incurred while opposing defendants’ successful default
appeal.  Defendants also challenge
specific billings related to discovery conducted at the trial level.  Additionally, defendants protest the amount
of hourly fees charged by plaintiff’s attorneys.  Finally, defendants assert plaintiff obtained
a limited degree of success, engaged in vexatious litigation tactics, and made
an improper request for costs—all of which supply other reasons to reduce the
fee award.

            A.  >The Default Judgment and Appeal

Defendants calculate the amount of fees related to the
default judgment and default appeal as being $103,250 for 252.43 hours of work
between September 2005 and March 2008. 
The record, however, shows the amount of fees incurred for the appeal
was only $32,764 between April 2007 and February 2008.  Notwithstanding this discrepancy in amounts,
we reject defendants’ claims about the unreasonableness of these fees.

We agree with defendants’ assertion that “reasonable”
fees are “necessary” fees:  “[T]he
predicate of any attorney fee award .
. . is the necessity and usefulness of the conduct for which compensation is
sought.”  (Thayer v. Wells Fargo Bank, supra, 92 Cal.App.4th at p. 846; >Hadley v. Krepel (1985) 167 Cal.App.3d
677, 682-684.)  Defendants further argue
that plaintiff employed a questionable litigation strategy by pursuing a
default judgment against defendants that was later reversed on appeal.  The record, however, does not demonstrate
that plaintiff’s efforts to litigate her case against defendants, including
obtaining a default judgment, were unnecessary or unreasonable.  Defendants’ litigation conduct, as we
described it in our previous opinion, contributed a great deal to the
difficulties encountered by plaintiff in pursuing her claims.  For more than a year, defendants switched
attorneys, failed to make many court appearances, and did not cooperate.  Although defendants secured relief from the
default judgment, plaintiff was entirely justified in trying to defend the
judgment on appeal.  For the foregoing
reasons, we conclude the fees were necessarily and reasonably incurred for the
litigation and appeal involving the default judgment.

Nor, if the litigation is ultimately
successful, is a party precluded from recovering fees for interim appellate
work, as defendants urge.  In some
circumstances, a party may not recover for fees incurred in an unsuccessful
interim proceeding which the party initiated. 
In Harman v. City and County of
San Francisco (2007) 158 Cal.App.4th 407, 424 (Harman), the appellate court determined the trial court had
properly deleted the hours spent on an unsuccessful petition for rehearing of a
prior appeal.  But a different situation
occurs, as here, where plaintiff had to respond to an interim appeal brought by
defendants.  It is uncontestable that it
was both necessary and useful for plaintiff to participate in the default
appeal.

In our previous opinion, we ordered the parties to
bear their own costs on appeal.  (>Gonzalez v. Rinard, supra, E041658, p.
12.)  That order does not, as proposed by
defendants, constitute an order that each party bear its own attorney fees on
appeal.  Appellate attorney fees are not
recoverable as appellate costs under California Rules of Court, rule
8.278(d)(2).

            B.  >Specific Billings

            Defendants object to the award of
attorney’s fees in the amount of $3,315 incurred for review of two other
related lawsuits and depositions, which involved defendants and Forrest
Rinard.  Defendants also object to
$1,686.25 in fees for a discovery motion that was withdrawn and to billings of
$9,383.50 related to plaintiff’s deposition.

As we have already noted, an experienced
trial judge is the best judge of the value of professional services rendered in
court unless we are convinced the judge was clearly wrong and abused his or her
discretion.  (Children’s Hospital & Medical Center v. Bont>á>, supra, 97 Cal.App.4th at p. 782.)  The trial court considered defendants’
arguments below and rejected them, as do we now.

            C.  >Other Factors:  Hourly Rate, Degree of Success, Litigation
Conduct

Plaintiff’s attorneys charged an hourly rate ranging
between $350 and $450.  Plaintiff offered
evidence that a reasonable hourly rate was between $400 and $675.  Defendants claim a more reasonable hourly
rate is $250.

The trial court did not award the 2.0 multiplier
sought by plaintiff, which would have doubled the actual fees requested.  But the court did expressly find plaintiff’s
claimed hourly rate “is within the customary range for attorneys of her caliber
and experience” and “defendants’ counsels’ self-serving declarations respecting
prevailing rates are considerably less persuasive.”  Again, the trial judge assesses the value of
legal services.  The amount of a fee
awarded will not be “set aside on appeal absent a showing that it is manifestly
excessive in the circumstances.  (>PLCM Group v. Drexler, supra, 22 Cal.4th
1084, 1095.)  Such a showing has not been
made in this case.”  (>Children’s Hospital & Medical Center v.
Bontá, supra, 97
Cal.App.4th at p. 782.)

Defendants further maintain that plaintiff’s fee award
should be reduced, presumably because she settled her claims against these
defendants for only $95,000.  In >Harman, supra, 158 Cal.App.4th at page
421, we explained:  “‘[W]e do not
reflexively reduce fee awards whenever damages fail to meet a plaintiff’s
expectations in proportion to the damages’ shortfall.’  (Nigh
v. Koons Buick Pontiac GMC, Inc. (4th Cir. 2007) 478 F.3d 183, 190.)”  We decline to adopt defendants’
contention:  “[W]hile the degree of the
plaintiff’s success in obtaining the objectives of the litigation is a factor
that the trial court may consider in determining an award of reasonable
attorney fees under a fee statute (Meister,
supra, 67 Cal.App.4th at p. 455; PLCM
Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096) . . . we determine
that there is no requirement that the trial court make an award of attorney
fees in an amount that is commensurate with or in proportion to the degree of
success in the . . . litigation.”  (>Bernardi, supra, 167 Cal.App.4th at p.
1398.)

Finally, we reject defendants’ characterization of
plaintiff’s litigation conduct as “vexatious.” 
Both plaintiff and defendants have delayed and prolonged the subject
litigation.  But we do not perceive
circumstances justifying a reduction of plaintiff’s fees based on the
application of equitable principles.  (Enpalm,
LLC v. Teitler (2008) 162 Cal.App.4th 770, 774-775.)

IV

DISPOSITION

            We affirm the judgment and order
plaintiff as the prevailing party to recover her costs on appeal.  Plaintiff’s request for attorney’s fees on
appeal is remanded to the trial court.

            NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

RICHLI                                  

                                                J.

 

We
concur:

 

 

HOLLENHORST                   

                               Acting P. J.

 

 

McKINSTER                         

                                              J.