Jimenez v. Too Fast, Inc.

Filed 2/26/10 Jimenez v. Too Fast, Inc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County. Ricardo A. Torres, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Law Offices of John P. Dwyer, John P. Dwyer; Excelus Law Group, Inc., and William W. Bloch for Plaintiff and Appellant.

Pollard Mavredakis Cranert Crawford & Stevens and Michelle M. Lambre for Defendant and Respondent.

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Plaintiff Wendy Jimenez appeals from a postjudgment attorney fee award of $84,000 in her action against her former employer, Too Fast, Inc., for pregnancy discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 et seq). After plaintiff obtained a judgment on a jury verdict for $55,000 plus costs of approximately $18,000, she sought attorney fees for her two attorneys, totaling $686,290.50. We affirm the $84,000 award, rejecting plaintiffs contentions that the court abused its discretion in determining the lodestar figure and in failing to apply a multiplier.

BACKGROUND

Defendant Too Fast, doing business as Del Amo Motorsports, hired Jimenez as a full-time assistant to its service manager, Michael Larkin. Jimenez earned $14 per hour and worked from July 2006 to February 2007, when Too Fast terminated her employment. Jimenez informed Larkin that she was pregnant in January 2007. In a subsequent administrative hearing in which Too Fast contested Jimenezs application for unemployment compensation, Larkin filed a document stating that Jimenez has had excessive absenteeism since here [sic] hire date of 7/16/06 . . . . She states that she was fired due to the fact that she was pregnant. This was a small determining factor in her termination.

On March 28, 2007, Jimenez, through her attorney, William Bloch of Excelus Law Group, Inc., filed a complaint for damages asserting causes of action under FEHA and the common law. Too Fast answered the complaint in May 2007. On June 20, 2008, Robert Racine filed a notice of association as counsel of record for Jimenez.

A jury trial was held over the course of four days in June 2008. One day was spent in selecting the jury; testimony was received on Wednesday, June 25, through Friday, June 27, 2008. Seven witnesses testified and 24 exhibits were admitted into evidence. On Monday, June 30, the parties argued motions and gave their closing arguments. Jimenezs attorney argued to the jury that damages were in the range $275,000 to $775,000. The jury was instructed on the morning of Tuesday, July 1, and returned its verdict later that afternoon.

Bloch examined the witnesses at trial and argued the case to the jury. According to Racine, among other things, he helped Bloch prepare the case for trial and worked closely with Mr. Bloch and was responsible for electronic document management on this case preparation and completion of trial notebooks, and was responsible for audio-visual aids and equipment used during trial.

The jury found that Jimenezs pregnancy was a motivating reason for the termination of her employment, that termination of employment caused her harm, and that she sustained damages of $55,000, consistent with about one and one-half years salary at Too Fast. The jury rejected Jimenezs claim of disability discrimination, finding that Too Fast did not know that Jimenez had asthma that limited her ability to work near a garage. On August 18, 2008, a judgment for $55,000 plus costs of $18,443.44 was entered in favor of Jimenez and against Too Fast.

In September 2008, Jimenez filed a motion for an award of attorney fees under Government Code section 12965, subdivision (b).[1] Bloch sought a total of $452,770.50, which included fees for himself and his paralegal. Bloch determined a lodestar figure of $278,726, which was based on hours worked by Bloch (525.1 hour at $475 per hour, or $249,422.50) and his paralegal (80.9 hours at $115 per hour, or $9,303.50). Bloch then enhanced the lodestar figure by a multiplier of 1.75, to account for the successful result and the contingent risk of litigation.

Cocounsel Racine sought total fees of $233,520, which included a lodestar figure of $133,440 (266.88 hours at $500 per hour), enhanced by a multiplier of 1.75. The fees sought by Bloch and Racine together totaled $686,290.50.

In support of the motion, Bloch declared that he is a sole practitioner and employs two full-time assistants and one part-time assistant; his regular billing rate is $450 per hour; 70 percent of his practice is discrimination litigation; other skilled counsel in Los Angeles County who specialize in this area charge between $450 and $550 per hour; between mid-June and July 4, 2008, he had to stop working on all of his other cases to devote his time to Jimenezs case; he had to give up several cases and refer out a matter, resulting in loss of billings of over $35,000. Bloch advanced over $18,000 in costs for the Jimenez case. Bloch also engaged and supervised Racine, who has practiced employment law since 1982, and who previously assisted Bloch as second chair in another trial. According to Bloch, his request for fees was discounted by about $258,000, because he did not include the time he spent consulting with Racine, meeting with some witnesses, and telephoning opposing counsel and other attorneys. He also did not include the time his employees spent performing tasks related to the case. Attached to his declaration was a 13-page billing statement documenting approximately 583 hours spent on Jimenezs case. Of the total hours spent on the case, Bloch claimed 89.6 hours (for a total of $42,560) in connection with the motion for attorney fees.

To support Blochs claims, among other things, as to the range of billing rates of attorneys skilled in the area of employment law, he submitted declarations of Attorneys Norman Pine, Marvin Krakow, Lisa L. Maki, Dolores Y. Leal, Wilmer J. Harris, and Michael Marx. The attorneys expressed their opinions that the hourly rates of $475 for Bloch and $500 for Racine were reasonable and comparable to rates of other attorneys of similar skill and reputation in the community.

Racine also submitted a declaration setting out his background, experience, and work done on Jimenezs case. For posttrial matters, consisting primarily of motions to tax costs and for attorney fees, Racine claimed a total of 15 hours, or $7,500.

In opposition to the motion, Too Fast contended that the case presented no novel or difficult questions and . . . the court should deny the lodestar amount of the fee requested and further should not apply any multiplier to the fee request. Too Fast argued that the history of the case showed that the case was fee driven and that Racine added nothing of value to the case, that his primary function was to operate the overhead projector at trial, and that it does not take an attorney charging $500.00 per hour to run an overhead projector. Scanning documents and preparing trial notebooks is important work, but the work of a paralegal . . . . Too Fasts attorney declared that in March 2008, the parties engaged in private mediation; the mediator issued a proposal; Too Fast accepted the proposal but Jimenez rejected it. After the mediation, the parties engaged in settlement negotiations but for no apparent reason the last demand plaintiff made at the mediation . . . increased significantly. Too Fast made a statutory offer to compromise, which was ignored by Jimenez. At a brief mandatory settlement conference, Jimenezs settlement demand increased. After the parties rested their cases, Too Fasts insurance carrier made a last settlement offer to Jimenezs counsel; the offer was rejected and Jimenez obtained a verdict four times less than Too Fasts last offer of settlement.

In reply, Jimenez argued that Too Fast provided no factual basis to support the assertions that there was unnecessary duplication in the work of Bloch and Racine and that Racine was little more than a projector operator. Jimenez claimed that Too Fast provided no basis to reduce any of the hours requested nor the reasonable hourly rates of Bloch and Racine. Jimenez maintained that the case was a difficult one in which to forecast success in that she was not permanently harmed, had no psychological treatment, had obtained a better job after being terminated by Too Fast, and the evidence was conflicting as to whether she properly notified Larkin of the medical reason for her absence immediately preceding her termination. Jimenez also argued that Too Fast improperly attempted to place information about mediation and settlement before the court, which information is confidential and inadmissible.

After a hearing on the motion, the trial court issued an order granting Jimenez fees of $84,000. The written order stated that the court rejects plaintiffs requested hourly rates of $475 for William Bloch, $115 for legal assistant Shawnee Sosa, and $500 for Robert Racine. The court awards $84,000 in attorney fees based on 240 hours multiplied by the hourly rate of $350. [] . . . The court rejects plaintiffs request for a multiplier.

The trial court stated at the hearing that the trial did not take even 20 hours in front of the jury, there were no expert witnesses, and the case was not complicated.[2] Jimenez appealed from the order awarding attorney fees.

DISCUSSION

An appellate court may reverse a trial court decision concerning an award of attorney fees only upon a finding of a prejudicial abuse of discretion. (Horsford v. Board of Trustees of CaliforniaStateUniversity (2005) 132 Cal.App.4th 359, 393 (Horsford).) 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[] meaning that it abused its discretion. [Citations.] [Citations.] Accordingly, there is no question our review must be highly deferential to the views of the trial court. [Citation.] [] At the same time, discretion must not be exercised whimsically, and reversal is appropriate where there is no reasonable basis for the ruling or the trial court has applied the wrong test or standard in reaching its result. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239 (Nichols) [in sexual harassment case under FEHA where the plaintiff hired out-of-town attorney from higher fee market, trial court abused discretion in applying a multiplier of .33 because it mistakenly believed a multiplier was mandatory rather than discretionary].)

The award of attorney fees in FEHA cases accomplishes the Legislatures expressly stated purpose [in section 12920] to provide effective remedies that will eliminate these discriminatory practices. [Citation.] [Citation.] (Horsford, supra, 132 Cal.App.4th at p. 394.) In order to be effective in accomplishing the legislative purpose of assuring the availability of counsel to bring meritorious actions under FEHA, the goal of an award of attorney fees is to fix a fee at the fair market value for the particular action. [Citation.] [F]ee awards should be fully compensatory. [Citation.] [A]bsent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent in litigating the action to a successful conclusion. [Citation.] Reasonably spent means that time spent in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.] (Horsford, at p. 394.)

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. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1172 (Weeks).) The purpose of a fee award is not to punish the defendant, but to ensure that the plaintiff will be fully compensated and will not have to bear the expense of litigation. (Weeks, at p. 1176.)

Thus, in attorney fee determinations such as this one, the exercise of the trial courts discretion must be based on a proper utilization of the lodestar adjustment method, both to determine the lodestar figure and to analyze the factors that might justify application of a multiplier. [Citation.] (Nichols, supra, 155 Cal.App.4th at pp. 12391240.) In determining a reasonable attorney fee award under fee-shifting statutes such as FEHA, a court begins by deciding the reasonable hours spent on the case and multiplying that number by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type. [Citation.] The result is called the lodestar figure. [Citation.] The court may then adjust the lodestar figure in light of a number of relevant factors that weigh in favor of augmentation or diminution. [Citations.] (Nichols, at p. 1240.)

In Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano), the court identified the relevant factors that the trial court may consider in augmenting or diminishing the lodestar figure. The factors pertinent here are: (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award . . . . (Serrano, at p. 49.)[3] When the trial court explicitly takes such factors into account in setting the lodestar, there is no logical basis for using them again to enhance or apply a multiplier to the award. As the prevailing party, plaintiff was entitled only to reasonable attorney fees (Gov. Code,  12965, subd. (b)), not reasonable fees plus a windfall. (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 647.) Thus, 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 Cal.3d 621,] 635.) (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137 (Ketchum).)

Recently, in Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 (Chavez), our Supreme Court held that the trial court did not abuse its discretion in denying attorney fees altogether in a FEHA case where the fee request was unreasonably inflated. After a five-day jury trial, the jury rejected Chavezs claims under FEHA for employment discrimination and harassment based on race and perceived mental disability, but found in his favor on a retaliation claim and awarded him damages of $11,500. Chavez sought attorney fees for a total of 1,851.43 attorney hours between January 12, 2000, and October 24, 2005, during which [Chavezs] attorney brought and litigated on [Chavezs] behalf two actions in Los Angeles County Superior Court . . . and one action in federal district court . . . , which also included time spent on an appeal to the Ninth Circuit. . . . [] [Chavez] does not claim that his success on the single FEHA retaliation claim had any broad public impact or resulted in significant benefit to anyone other than himself. Because this single successful claim apparently was not closely related to or factually intertwined with [his] many unsuccessful claims, the trial court reasonably could and presumably did conclude that [Chavez] was not entitled to attorney fees for time spent litigating those unsuccessful claims. [] Whether [Chavez] was entitled to an award of attorney fees for time spent litigating the single successful claim requires consideration of another established principle governing attorney fee awards: A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. [Citations.] Here, the trial court reasonably could and presumably did conclude that [Chavezs] attorney fee request in the amount of $870,935.50 for 1,851.43 attorney hours was grossly inflated when considered in light of the single claim on which [Chavez] succeeded, the amount of damages awarded on that claim, and the amount of time an attorney might reasonably expect to spend in litigating such a claim. This fact alone was sufficient, in the trial courts discretion, to justify denying attorney fees altogether. (Chavez, at pp. 990991.)

Here, the trial court concluded that the amount of time an attorney might reasonably expect to spend in litigating [Jimenezs] claim (Chavez, supra, 47 Cal.4th at p. 991) was 240 hours (40 hours per week for six weeks). The court found that the case was not complicated because the trial consumed only 20 hours and involved 24 exhibits and 7 witnesses. Jimenez argues that the trial court abused its discretion by disregarding undisputed evidence of the attorneys reasonable hourly rates and the hours actually worked, and relying instead on irrelevant considerations.

Jimenez relies on Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 for the proposition that the trial court here was required to calculate the lodestar figure based on the actual time expended on the case. But Doppes is inapposite because the attorney fees there were based on Civil Code section 1794, subdivision (d), a provision of the Song-Beverly Consumer Warranty Act, which requires an award of attorney fees to the prevailing consumer based on actual time expended. (Doppes, supra, 174 Cal.App.4th at pp. 997998.) No such language appears in section 12965, subdivision (b), which gives the trial court discretion to award reasonable attorneys fees and costs. ( 12965, subd. (b).)

Similarly unavailing is Jimenezs citation to Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440 and Weeks, supra, 63 Cal.App.4th 1128, as neither case stands for the proposition that in awarding fees under section 12965, subdivision (b), the trial court must award fees based on actual time expended. In Vo, the plaintiff s compensatory damages under FEHA were $37,500; the parties stipulated to a lodestar figure of $487,500 and the only issue for the trial court was how much the lodestar should be reduced to account for the plaintiffs lack of success on several of her claims. The trial court reduced the lodestar by only $17,500, and the defendant argued on appeal that the trial court abused its discretion. Because the defendant did not provide a record of the pleadings and the trial for the appellate court, that court concluded that there was an inadequate record to establish any abuse of discretion and affirmed the attorney fee award.

In Weeks, a sexual harassment case, the plaintiff was awarded $50,000 in compensatory damages, $3.5 million in punitive damages, and approximately $1.8 million in attorney fees and expenses. The attorney fees were calculated by fixing reasonable hourly fees for each legal professional representing Weeks, multiplying those figures by the number of hours reasonably devoted by the respective professional to the case, and multiplying that amount [$921,565] by a factor of 1.7. (Weeks, supra, 63 Cal.App.4th at p. 1137, italics added.) The Court of Appeal determined that attorney fees were properly awarded under FEHA, but remanded the matter to the trial court for reconsideration of the amount of the fee because we cannot find sufficient public or private reason in the factors cited by the trial court for the use of a multiplier of 1.7 in this case. (Id. at p. 1176.) Weeks thus does not support Jimenezs argument that in a FEHA case the lodestar adjustment method requires compensation for the actual time expended rather than the time that is reasonably devoted . . . to the case. (Id. at p. 1137.)

With respect to the hourly billing rate, Jimenez contends that the undisputed evidence in the record supports the requested hourly rates of $475 for Bloch, $500 for Racine, and $115 for the paralegal, and that the selection of the $350 per hour rate was arbitrary and not supported by any evidence.

It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court . . . . [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.) (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 [lodestar approach applied to fee award in contract action under Civil Code section 1717].)

Inasmuch as the purpose of the lodestar adjustment method is to fix a fee at the fair market value for the particular action, and the experienced trial judge is the best judge of the value of professional services rendered in his court (Ketchum, supra, 24 Cal.4th at p. 1132), Jimenez fails to establish that the $350 hourly rate used by the trial court was improper or constituted an abuse of discretion.

We also reject Jimenezs argument that the trial court based the lodestar figure on irrelevant considerations, such as the size of the jury verdict, the course of mediation proceedings, the amount of the settlement offer made while the jury was deliberating, and the fact that the case was close. Although the foregoing matters were discussed at the hearing on the motion, the written order awarding fees does not mention them. Rather, according to the order, the lodestar figure was based on the reasonable hours devoted to the case (240) and a reasonable hourly rate ($350 per hour). And the judges comments in oral argument cannot be used to impeach the final signed order. (See Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633 [order denying fees under Code of Civil Procedure section 128.5] (Jespersen).)

Jimenez complains that the trial courts evaluation of the case as simple was not based on all the evidence of the work done on the case and submitted with the motion, but based solely on an extrapolation of what the judge observed during court proceedings or a last minute settlement offer. But this claim is not borne out by the record, as the judge stated, Ive read and considered all the papers. It is clear from the record of the hearing that the trial judge recalled well the details of the trial as well as the details of the motion for fees.

With respect to the issue of a multiplier, Jimenez maintains that the trial court was under the mistaken impression that it had no discretion to apply a multiplier and that multipliers did not apply in FEHA cases. During the hearing on the motion, and before it made its ruling, the trial court remarked, Multipliers dont apply. Thats [Code of Civil Procedure section] 1021. And that doesnt apply to these types of cases. . . . [Y]oure entitled to reasonable attorneys fees at a reasonable rate. And you have neither given me reasonable hours or a reasonable rate.

Again, because the trial court subsequently signed a written order which explained the basis of its fee award (240 hours at $350 per hour), and in which the court expressly stated that it rejected application of a multiplier, we must infer that the court exercised its discretion to deny a multiplier, and such order cannot be impeached by comments made at the previous hearing on the motion. (Jespersen, supra, 114 Cal.App.4th at p. 633.) Assuming for the purposes of discussion that the trial court was laboring under a mistaken view of the scope of its discretion, Jimenez fails to establish any prejudice because it is clear from the record that the trial court would not have applied a multiplier given the circumstances of this case, as permitted by Chavez. Indeed, the trial court believed that the award of $85,000 was so generous, its incredible, and that the request for over $686,000 in fees was outrageous. The trial court here, as the trial court did in Chavez, determined that the fee request was unreasonably inflated. Accordingly, the trial court here made a reasonable factual determination which would have supported the denial of fees altogether under principles set out in Chavez and Ketchum. Because the trial court would have been justified in denying fees altogether, Jimenez cannot establish that the courts refusal to apply a multiplier was prejudicial.

Because the instant record fails to show that the trial court was laboring under a mistaken view of the law or that the court failed to exercise its discretion in an appropriate manner, we affirm the order.

DISPOSITION

The order is affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

CHANEY, J.

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[1]Unspecified statutory references are to the Government Code.

Section 12965, subdivision (b) provides in pertinent part: In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorneys fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.

[2]The court stated in pertinent part: No experts were called in this trial. No experts at all. We had the plaintiff, and we had the defendant [Larkin], and we had some employees that were called from the company. That was the case. That was what was presented here. [] 24 exhibits were used. They were documents. And youve come up with $686,000 that you want for attorneys fees on a case that turned out $55,000? And you turned down those settlements, which you tell me I cant consider. And now you want for this young lady got $55,000, which I thought was more than reasonable. I thought she was going to get zero. I didnt think the jury was going to give her a nickel. But they gave her $55,000. I thought that was reasonable. And I didnt upset the verdict. [] But for you to come in here and say to me that you think that $686,000 is reasonable for you and Mr. Racine is outrageous, and I wont award it. [] . . . [Y]oure entitled to reasonable attorneys fees at a reasonable rate. And you have neither given me reasonable hours or a reasonable rate. [] . . . [] Counsel, I try complex cases for millions and millions of dollars. And attorneys dont even charge $500 in those cases. And youre telling me that you want . . . $900 an hour?

The court awarded fees to plaintiff based on a total of six weeks at 40 hours per week, equals 240 hours at $350 an hour. . . . [] . . . [] . . . Ive determined the reasonable hours and a reasonable rate. And what Im trying to do is be fair. Thats what Im trying to do is be fair here. The court told Bloch to give [Racine] what you think is fair out of the 240 hours. After first announcing what the court had determined as to the reasonable hours and billing rate, the court remarked, And, counsel, I am being so generous, its incredible.

[3]The remaining factors set out in Serrano are: (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing lawsuits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed; and (7) the fact that in the courts view the two law firms involved had approximately an equal share in the success of the litigation. (Serrano, supra, 20 Cal.3d at p. 49, fn. omitted.)