Filed 5/19/22 Lopez-Lopez v. BBS National CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment and order of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed.

NT Law and Julie N. Nong for Defendant and Appellant.

Goularte Law Firm and Daniel J. Goularte for Plaintiffs and Respondents.

_______________________________________

INTRODUCTION

This is a wage-and-hour case. Defendant and appellant BBS National, Inc. (BBS) operates a restaurant that previously employed plaintiffs and respondents Domingo Lopez-Lopez, Juan Hernandez Lopez, and Pablo Hernandez Lopez (collectively, plaintiffs).[1] Plaintiffs sued BBS, claiming they had not been provided with legally-required breaks and had not been properly paid for work performed. Following a two-day bench trial, the court found in favor of plaintiffs on their Labor Code claims and awarded them damages and penalties of $73,522.05, $21,670, and $28,059.50, respectively. The court later awarded plaintiffs attorney’s fees of $138,105. BBS appeals both the judgment and the order awarding attorney’s fees. Finding no error, we affirm.

facts and procedural background

1. The Complaint

Plaintiffs filed their complaint against BBS in February 2017, asserting six[2] causes of action under the Labor Code: failure to pay wages, failure to provide meal periods, failure to provide rest periods, failure to pay overtime wages, failure to pay wages upon employment termination, and failure to issue accurate itemized wage statements. Generally, plaintiffs alleged that they were non-exempt employees (dishwashers and kitchen workers) entitled to meal and rest breaks as well as overtime pay. They further alleged that they were paid a flat weekly rate rather than an hourly wage with overtime pay. In addition, although they typically worked 11-hour shifts, the restaurant failed to provide adequate (or any) meal breaks and rest breaks as required by law. Plaintiffs sought to recover unpaid wages as well as interest, penalties, costs, and attorney’s fees.

2. The Trial

A bench trial took place on April 29, 2019 and April 30, 2019.[3] The parties stipulated to the admission of the bulk of the documentary evidence, which consists mainly of plaintiffs’ biweekly paystubs and a set of documents the parties have called “timecards.”

The paystubs show that each plaintiff was paid twice a month. There is almost no variation in the amount of the payments to each plaintiff, i.e., if the pay period includes 14 days, 15 days, or 16 days, the amount paid is generally the same for each pay period. The paystubs contain no indication that the payments are based on a specific hourly rate of pay, as they list only the total amount of the payment.

The handwritten timecards purport to show days and hours worked and sometimes note a rate of pay. The handwritten notes of hours worked are virtually identical from day to day and week to week. For Domingo, for example, the timecard notations indicate that he generally worked 11:00 a.m. to 3:45 p.m. and again from 5:00 p.m. to 10:00 p.m. The timecards bear the signatures of the individual plaintiffs. And some timecards show that payments were split between cash and checks.

To provide context, we include copies of Domingo’s paystub and corresponding timecard for the first half of April 2016:

Paystub:

Timecard:

Each of the plaintiffs testified that no time records were kept by the restaurant and that the so-called timecards admitted at trial are not an accurate record of the time they actually worked. Domingo typically worked from 10:30 a.m. to 10:30 p.m., six days per week, and sometimes had a break during the day from 3:00 p.m. to 5:00 p.m. His rate of pay varied over time because he was promoted several times but generally he was paid a daily rate (ranging between $125 and $140 per day) and received bonuses as he took on more responsibility. Pablo typically worked six days a week from approximately 10:30 a.m. to 11:00 p.m. Initially, he received only one 30-minute break during his shift but later he received a one-hour meal break. Pablo was paid $700 twice a month. Juan generally worked a 12‑hour day, from 10:30 a.m. to 10:30 p.m. He was paid either $100 or $110 per day, depending on his job assignment.

3. The Judgment and Appeal

The court noted that the parties stipulated to the days worked and the wages paid as shown in Court Exhibit A.[4] But BBS kept no formal records of the time (arrival, breaks, departure) worked by plaintiffs. The court found that plaintiffs generally worked 11 to 12 hours per day, had a 30-minute break to eat lunch at around 2:30 p.m., and ate a dinner provided by the restaurant at around 9:00 p.m., which they ate while they worked.

The court also correctly stated that the absence of reliable timekeeping or pay records is construed against an employer. Due to the absence of credible timekeeping records maintained by BBS, and based on the testimony of the plaintiffs, the court concluded that BBS violated California labor laws in a number of ways, including failure to pay wages due at the time of employment termination (Lab. Code, § 203^[5]), failure to provide rest breaks and meal breaks (§ 226.7), and failure to pay overtime wages (§ 515). The court made detailed calculations for each plaintiff regarding meal and rest break penalties and wages owed, and calculated penalties relating to waiting time and BBS’s failure to issue accurate wage statements. The court awarded Domingo $73,522.05, Juan $21,670, and Pablo $28,059.50.

The court entered judgment in favor of plaintiffs on January 24, 2020. BBS timely appeals.

4. Order on Attorney’s Fees and Appeal

The judgment awarded plaintiffs costs and reasonable attorney’s fees in an amount to be determined. Plaintiffs apparently sought attorney’s fees in the amount of $156,157 ($87,712 for attorney Goularte and $68,445 for attorney Josephson) and requested a multiplier of 1.2, due to the level of skill required and the complexity of the issues.[6] The court declined the request for a multiplier, reduced the hourly rate for attorney Josephson from $675 to $495, and awarded attorney’s fees in the amount of $138,105.

The court entered the order granting plaintiffs’ motion for attorney’s fees on July 7, 2020. BBS timely appeals.

We consolidated the two appeals for all purposes on October 21, 2021.

DISCUSSION

1. The Appellant’s Burden on Appeal

The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and “it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

In addition, parties must provide citations to the appellate record directing the court to the supporting evidence for each factual assertion contained in that party’s briefs. When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779–801 [several contentions on appeal “forfeited” because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) Further, “an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)

With these principles in mind, we address the issues raised by BBS.

2. The Judgment

BBS contends the judgment is not supported by substantial evidence. We reject the argument because BBS fails to carry its burden to establish error on appeal. In any event, the argument is meritless.

1. 1. Standard of Review

“On appeal from a judgment based on a statement of decision after a bench trial, we review the trial court’s conclusions of law de novo and its findings of fact for substantial evidence. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) Under the deferential substantial evidence standard of review, we ‘liberally construe[ ]’ findings of fact ‘to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings.’ (Ibid.) ‘We may not reweigh the evidence and are bound by the trial court’s credibility determinations.’ (Estate of Young (2008) 160 Cal.App.4th 62, 76.) Testimony believed by the trial court ‘may be rejected only when it is inherently improbable or incredible, i.e., “ ‘unbelievable per se,’ ” physically impossible or “ ‘wholly unacceptable to reasonable minds.’ ” ’ (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) ‘ “The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record.” ’ (Estate of Young, at p. 76.)” (McPherson v. EF Intercultural Foundation, Inc. (2020) 47 Cal.App.5th 243, 257.)

1. 2. BBS fails to apply the standard of review and misstates the record.

BBS claims the judgment is not supported by substantial evidence because “the parties stipulated that the timecards admitted at trial were the true and correct timecards of [plaintiffs] reflecting their pay while employed by [BBS]. The time cards reflected the hourly rate of pay and hours worked and the signature of each of the [plaintiffs] where they went over their hours with Manager Peter Lu after each pay period.” This evidence, BBS contends, “demonstrated[ ] not that [plaintiffs] were paid on a salary basis, but in fact on an hourly basis and that the correct calculations demonstrated that there were no meal and rest break violations and that there was not due and owing any overtime.”

We have two responses. First, in making this argument, BBS utterly ignores the substantial evidence standard of review which, as noted, requires us to view the evidence in the light most favorable to the judgment. Applying that standard here, we note that the court deemed the documents referred to as “timecards” not to be a credible or accurate reflection of the hours worked by plaintiffs. Plaintiffs also testified that the notations on the timecards were not accurate and provided evidence of the actual hours they generally worked. That evidence sufficiently supports the court’s judgment in favor of plaintiffs.

Second, and in any event, BBS misstates the parties’ stipulation. The record shows the parties agreed only that the so-called timecards accurately reflected the days worked by and the amounts paid to plaintiffs. There is simply no indication that plaintiffs also stipulated, as BBS claims, that they were paid “on an hourly basis and that the correct calculations demonstrated that there were no meal and rest break violations and that there was not due and owing any overtime.” Indeed, plaintiffs’ testimony was to the contrary.

3. The Order Awarding Attorney’s Fees

BBS attacks the order awarding attorney’s fees on two grounds. First, BBS asserts the court erred in failing to apportion the fees between the causes of action for which fees are recoverable and those which are not. Second, BBS argues the fees awarded are unreasonable. We reject both arguments.

1. 1. Standard of Review

We review the amount of an award of attorney’s fees for an abuse of discretion. (PLCM Group v. Drexler, Inc. (2000) 22 Cal.4th 1084, 1096 (PLCM).) Unless an award is “clearly wrong,” no such abuse of discretion can be demonstrated. (Ibid.) In other words, an attorney’s fees award will not be set aside unless it is manifestly excessive under the circumstances. (See Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 235 (Cruz).)

1. 2. The court did not abuse its discretion in not apportioning plaintiffs’ attorney’s fees.

BBS contends the court erred by not apportioning plaintiffs’ attorney’s fees. We disagree.

Under sections 1194 and 218.5, plaintiffs are entitled to recover “reasonable attorney’s fees” relating to their claims for unpaid wages. (See §§ 1194, subd. (a), 218.5, subd. (a).) As BBS notes, however, those sections do not provide a basis for recovery of attorney’s fees relating to plaintiffs’ causes of action for meal and rest breaks. (See Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255 [no entitlement to reasonable attorney’s fees for meal and rest break claims under section 226.7].)

Where a plaintiff has alleged multiple causes of action and is statutorily entitled to fees with respect to only one or fewer than all of the claims, the trial court may apportion the attorney’s fees. (See Cruz, supra, 57 Cal.App.5th at p. 235.) However, attorney’s fees need not be apportioned where the claims involve either common factual or legal issues. (See, e.g., Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129–130 [“Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.”].) “ ‘Where fees are authorized for some causes of action in a complaint but not for others, allocation is a matter within the trial court’s discretion.’ [Citation.] Further, as the one who has ‘heard the entire case,’ it is the trial court who is ‘in the best position to determine whether any further allocation of attorney[’s] fees s required or whether the issues were so intertwined that allocation would be impossible.’ [Citation.]” ([i]Cruz, at p. 235.)

The trial court declined to apportion fees here because it found that plaintiffs’ causes of action were “so intertwined that it is not possible to separate them.” We see no error in the court’s finding. Plaintiffs’ claims for unpaid wages and their claims for meal and rest break penalties are closely related. Both sets of claims required the evaluation of the evidence relating to the days and hours plaintiffs worked. And that evidence was identical: pay stubs, the so-called timecards, and testimony by plaintiffs and other employees at the restaurant. The attorneys’ work during the case—discovery, motions, and trial—centered around a single set of facts that related to both types of claims.

BBS asserts that plaintiffs’ claims are not inextricably intertwined. But BBS includes no discussion of the legal bases of those claims nor does it discuss the evidence (e.g., the billing records) submitted by plaintiffs and their attorneys in support of their request for attorney’s fees. BBS has therefore forfeited this issue. (See, e.g., Kurinij v. Hanna & Morton, supra, 55 Cal.App.4th at p. 867 [noting “an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived”]; Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 655–656 [observing matters not properly raised or that lack adequate legal discussion will be deemed forfeited].)

1. 3. BBS fails to demonstrate that the fee award is unreasonable.

BBS also complains that the amount of the attorney’s fees award was unreasonable. Primarily, BBS asserts the hourly rate used by the court ($495 per hour) to calculate the fee award is too high.

Courts most often use the “lodestar” method to determine the amount of a fee award. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135–1136.) Under this method, “[t]he court tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321; see Cruz, supra, 57 Cal.App.5th at pp. 227–238.) The declaration of an attorney as to the number of hours worked on a particular case may be sufficient evidence to support an award of attorney’s fees, even in the absence of detailed time records. (Cruz, at p. 237.)

“ ‘In determining hourly rates, the court must look to the “prevailing market rates in the relevant community.” [Citation.] The rates of comparable attorneys in the forum district are usually used.’ ” (Nishiki v. Danko Meredith, P.C. (2018) 25 Cal.App.5th 883, 898; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) Moreover, a trial judge is best equipped to determine the reasonable value of the legal services provided. (See PLCM, supra, 22 Cal.4th at p. 1096 [“ ‘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.’ ”]; see also Serrano v. Priest (1977) 20 Cal.3d 25, 49 [An “ ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while [the judge’s] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ”].)

The court here reviewed the declarations submitted by the two attorneys who represented plaintiffs during the case. Attorney Goularte described his work on the case during 2018 and 2019 and provided detailed time records. He also noted that his hourly rate ($485 in 2018 and $495 in 2019) was commensurate with the prevailing rate for attorneys with his experience in Los Angeles County. Attorney Josephson provided a similar declaration and detailed time records. He stated that his hourly rate ($675 at all relevant times) was fair and reasonable. Together, the attorneys billed 279 hours during the course of the representation. Both attorneys requested a multiplier of 1.2 in light of the complexity of the case and the financial risks attendant to representing low-wage earners in wage-and-hour cases.

The court concluded that the number of hours billed by the attorneys was reasonable and that the hourly rate charged by attorney Goularte was also reasonable. The court, however, reduced the hourly rate for attorney Josephson from $675 to $495 and declined to apply a multiplier for either attorney. We see no indication that the attorney’s fees award was “clearly wrong” or that the court abused its discretion in determining the attorney’s fees award. The attorney declarations provide substantial evidence supporting the award.

BBS argues plaintiffs failed to provide evidence of the prevailing rate in the community. Not so. The attorneys attested that their rates were in line with community rates. In any event, the trial judge was undoubtedly aware of the generally acceptable hourly rates in the area for attorneys with their level of experience and skill. Nevertheless, BBS contends the rate used by the court “was in direct contravention to the rates [BBS] demonstrated were prevailing in the community.” BBS refers, it seems, to an exhibit attached to its opposition to the motion for attorney’s fees, which appears to be from a blog hosted by https://www.lawyersmutualnc.com and purports to list “Top 10 Hourly Rates by City,” with the average hourly rate for attorneys in Los Angeles at $324. The court, however, rejected this evidence “because it is merely a blog post.” We agree that the evidence submitted by BBS lacked sufficient context to be useful and conclude that the trial court did not abuse its discretion.

DISPOSITION

The judgment and order awarding attorney’s fees are affirmed. Plaintiffs shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

KALRA, J.*

[1] We will refer to the individual plaintiffs by their first names to avoid confusion. No disrespect is intended.

[2] The complaint also included a cause of action under Business and Professions Code section 17200 et seq. The trial court found against plaintiffs on that claim, and they have not appealed that portion of the judgment.

[3] The trial proceedings were not reported. The court subsequently approved BBS’s summary of trial testimony as a settled statement for purposes of this appeal.

[4] This exhibit is not included in the appellate record.

[5] All undesignated statutory references are to the Labor Code.

[6] The points and authorities were not included in the appellate record. We must therefore rely solely on the attorney declarations in support of the motion for attorney’s fees, which are included in the record.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.